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Villa Sendero Homeowners Association Inc v. Diana Costain: Arizona HOA Superior Court Case Guide

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CC&R Amendments & Short-Term Rentals | Kalway v. Calabria Ranch | CV2022-004188

In this Maricopa County Superior Court case, homeowner Diana Costain challenged the Villa Sendero Homeowners Association’s authority to adopt a Fifth Amendment to its CC&Rs banning rentals of less than 30 days. Invoking Kalway v. Calabria Ranch HOA, she argued the original declaration — which allows “rent signs” and lets owners delegate common-area rights to tenants — gave no reasonable notice that short-term rentals could later be prohibited. The court denied her motion to dismiss because terms like “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” are undefined in the CC&Rs and required factual development. The parties settled before the question was ever answered on the merits.

Last updated July 1, 2026. Case: Villa Sendero Homeowners Association Inc v. Diana Costain, Maricopa County Superior Court No. CV2022-004188.

Download motion-to-dismiss ruling

Scope note: This page covers Villa Sendero Homeowners Association Inc v. Diana Costain (Maricopa County Superior Court No. CV2022-004188) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the August 9, 2022 under-advisement ruling on the motion to dismiss; the complete set of collected minute entries is available in the source-document index below. Currency caveat: the last collected minute entry, dated December 14, 2022, shows the court accepted a notice of settlement and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The collected entries do not include a final dismissal order, and the terms of the settlement are not part of the court’s minute-entry record. The court never ruled on the merits of the amendment’s validity. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court denied homeowner Diana Costain’s Rule 12(b)(6) motion to dismiss. Whether the Association’s 2020 Fifth Amendment to the CC&Rs — which prohibits rentals of less than 30 days — was properly adopted could not be decided on the pleadings, because key terms in the CC&Rs are undefined: “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent.” The court held that further development of those terms was appropriate during the case, and it noted that Kalway v. Calabria Ranch HOA — the Arizona Supreme Court amendment-notice decision both sides fought over — was initially addressed by the trial court on summary judgment, not a motion to dismiss. The court also held that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. The parties settled about four months later, so the validity of the short-term-rental ban was never decided on the merits.

Case Participants

Petitioner Side

  • Villa Sendero Homeowners Association, Inc. (Plaintiff)
    Homeowners association that adopted the Fifth Amendment to its CC&Rs in 2020 prohibiting rentals of less than 30 days; the named plaintiff in this action, which filed an Application for Preliminary Injunction on April 4, 2022.
  • Chandler W. Travis (Counsel)
    Counsel of record for Plaintiff Villa Sendero Homeowners Association, Inc. throughout the collected minute entries.

Respondent Side

  • Diana Costain (Defendant)
    Homeowner who purchased her Villa Sendero property in 2013 — a 35,000-square-foot lot containing a home, multiple buildings, and parking. She moved to dismiss, challenging the Association’s authority to adopt the short-term-rental restriction.
  • Mark Bainbridge (Counsel)
    Counsel of record for Defendant Diana Costain throughout the collected minute entries.

Neutral Parties

  • Joseph P. Mikitish (Judge)
    Maricopa County Superior Court judge who presided over the case and issued the August 9, 2022 under-advisement ruling denying the motion to dismiss.
  • John D. Lierman (Judge Pro Tempore)
    Judge pro tempore appointed through the court’s Alternative Dispute Resolution department; conducted the parties’ settlement conference and signed the Civil Settlement Conference Report reflected in the December 14, 2022 minute entry.

What happened

Villa Sendero is a homeowners-association community governed by a recorded declaration of covenants, conditions, and restrictions (CC&Rs). Diana Costain purchased her property there in 2013 — a 35,000-square-foot lot containing a home, multiple buildings, and parking — and the property has been subject to the CC&Rs since her purchase. In 2020 the Association adopted an amendment to the CC&Rs, the “Fifth Amendment,” prohibiting rentals of less than 30 days.

The dispute reached Maricopa County Superior Court in 2022 with the Association as the named plaintiff and Costain as the defendant; the Association filed an Application for Preliminary Injunction on April 4, 2022. At an April 22, 2022 return hearing before Judge Joseph P. Mikitish, the parties stipulated to a briefing schedule for a motion to dismiss from Costain, and the court held the Association’s preliminary-injunction application in abeyance until that motion could be argued. Costain filed her motion on May 19, 2022, and the court heard oral argument on June 17, 2022 — a virtual hearing that six residents of the Villa Sendero community also attended.

Costain’s motion framed the core question: could the Association validly adopt a new short-term-rental restriction by amendment? She argued that CC&Rs are contracts interpreted as a matter of law, and that under the Arizona Supreme Court’s decision in Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), an original declaration must give owners sufficient notice of the possibility of a future amendment. Here, she argued, the original CC&Rs did not restrict rentals at all and in fact contemplated them — Article VIII allows “rent signs,” and Article III, Section 2 lets a homeowner delegate common-area enjoyment rights to tenants — so the general amendment provision gave her no reasonable notice that rentals under 30 days could later be banned. She also argued the restriction decreased her property’s value.

The Association responded on two fronts. Procedurally, it argued Costain’s Kalway theory failed because she had not filed a declaratory relief action, as the Kalway plaintiff had. Substantively, it argued the original CC&Rs already required each lot to be used only for a single-family residence and prohibited use of the premises for “business, professional, commercial or institutional purposes” — so residents had notice of use restrictions from the start, and the amendment merely clarified that prohibited commercial operations include short-term, bed-and-breakfast-style leases. Costain replied that no declaratory counterclaim is required to raise the defense, that the Association was not clarifying an existing restriction but adding a new one untethered to the original CC&Rs, and that a short-term rental is no more a business operation than a long-term rental is.

In an under-advisement ruling issued August 9, 2022, Judge Mikitish denied the motion to dismiss. The court agreed with Costain that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. But it found that key terms and provisions in the CC&Rs — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are not defined, and that further development of those terms was appropriate during the action to determine whether the Fifth Amendment was properly adopted. The court could not conclude at the pleading stage that the complaint failed to support the Association’s allegations, and it noted that Kalway itself was initially addressed by the trial court on motions for summary judgment rather than a motion to dismiss.

The case then moved toward resolution rather than trial. On September 27, 2022 the court adopted the parties’ stipulated scheduling order, referred the case to the court’s Alternative Dispute Resolution department for a mandatory settlement conference to be held by January 5, 2023, and set a trial setting conference for February 24, 2023. The settlement conference worked: after receiving the Civil Settlement Conference Report signed by Judge Pro Tempore John D. Lierman, the court on December 14, 2022 accepted the notice of settlement, deemed all pending matters moot, vacated the trial setting conference, and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The settlement’s terms do not appear in the minute-entry record, and the validity of the short-term-rental amendment was never decided.

Procedural timeline

Step 2020 The Association adopts the Fifth Amendment to the CC&Rs, prohibiting rentals of less than 30 days.
Step 2022-04-04 The Association files an Application for Preliminary Injunction in Maricopa County Superior Court (CV2022-004188).
Step 2022-04-22 Virtual return hearing before Judge Mikitish. By stipulation, the court sets a briefing schedule for Costain’s motion to dismiss, sets oral argument, and holds the preliminary-injunction application in abeyance.
Step 2022-05-19 Costain files her Motion to Dismiss; the Association responds June 3 and Costain replies June 9.
Step 2022-06-17 Virtual oral argument on the motion to dismiss, attended by six Villa Sendero residents; the court takes the motion under advisement.
Step 2022-08-09 Under-advisement ruling denies the motion to dismiss: key CC&R terms are undefined and require factual development before the Fifth Amendment’s validity can be determined.
Step 2022-09-27 The court adopts the parties’ stipulated scheduling order, orders a mandatory settlement conference (to be held by January 5, 2023), and sets a trial setting conference for February 24, 2023.
Step 2022-12-14 After a settlement conference before Judge Pro Tempore John D. Lierman, the court accepts the notice of settlement, deems pending matters moot, vacates the trial setting conference, and places the case on the dismissal calendar for dismissal on or after February 14, 2023.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/villa-sendero-homeowners-association-v-diana-costain/raw/: 5 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2022-04-22

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2022-04-22_001_oral-argument-set.pdf
Source 2 2022-06-17

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-06-17_002_minute-entry.pdf
Source 3 2022-08-09

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-08-09_003_under-advisement-ruling.pdf
Source 4 2022-09-27

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-09-27_004_minute-entry.pdf
Source 5 2022-12-14

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-12-14_005_minute-entry.pdf

FAQ

What was this case about?

The validity of an HOA CC&R amendment restricting short-term rentals. In 2020 the Villa Sendero Homeowners Association adopted a Fifth Amendment to its CC&Rs prohibiting rentals of less than 30 days. Homeowner Diana Costain challenged the Association’s authority to adopt that restriction, arguing the original CC&Rs gave owners no notice that such a ban could later be imposed by amendment.

What is Kalway v. Calabria Ranch HOA and why did it matter here?

As described in the court’s ruling, Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), is an Arizona Supreme Court decision holding that for CC&Rs to be amended, the original declaration must give sufficient notice of the possibility of a future amendment. Costain relied on it to argue the general amendment clause in Villa Sendero’s CC&Rs gave no reasonable notice that a sub-30-day rental ban could be adopted. The court noted that Kalway was initially addressed by the trial court on summary judgment — a stage with a developed factual record — rather than on a motion to dismiss.

Did the court decide whether the short-term-rental ban was valid?

No. The August 9, 2022 ruling decided only that the question could not be answered on the pleadings. Because the CC&Rs do not define key terms — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — the court held further development of those terms was appropriate to determine whether the Fifth Amendment was properly adopted. The case settled in December 2022 before any merits ruling.

Does a homeowner have to file a declaratory judgment action to challenge a CC&R amendment?

Not to raise the issue defensively. The Association argued Costain’s challenge failed because, unlike the Kalway plaintiff, she had not filed a declaratory relief action. The court disagreed, holding that under the Arizona Rules of Civil Procedure a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs.

How did the case end?

By settlement. The court ordered a mandatory settlement conference in September 2022, and after Judge Pro Tempore John D. Lierman conducted the conference and submitted a Civil Settlement Conference Report, the court on December 14, 2022 accepted the notice of settlement, deemed all pending matters moot, vacated the trial setting conference, and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The settlement’s terms are not part of the minute-entry record.

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent — and here the court never even reached the merits of the amendment’s validity. The case is still useful reading: it shows how a Kalway notice challenge to a short-term-rental amendment is litigated, that undefined CC&R terms can keep such a dispute alive past the pleading stage, and that these fights often resolve through court-ordered settlement conferences rather than trial.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citationCV2022-004188 (Maricopa County Superior Court)
Court / tribunalSuperior Court
Decision / key dateAugust 9, 2022
Judge / panelHon. Joseph P. Mikitish
PartiesVilla Sendero Homeowners Association, Inc. (Plaintiff, homeowners association) v. Diana Costain (Defendant, homeowner)
Topics
cc-and-rsprocedureamendmentscovenants
Outcome / holding

The superior court denied the homeowner’s Rule 12(b)(6) motion to dismiss, holding that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs, but that whether the Fifth Amendment prohibiting rentals of less than 30 days was properly adopted could not be resolved on the pleadings because key CC&R terms — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are undefined and require further development; the case settled before any merits ruling.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package5 PDFs
Step-by-step docket roadmap8 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

In 2020 the Villa Sendero Homeowners Association adopted a Fifth Amendment to its CC&Rs prohibiting rentals of less than 30 days. The resulting Maricopa County Superior Court case — filed with the Association as plaintiff, which also applied for a preliminary injunction in April 2022 — turned on homeowner Diana Costain’s motion to dismiss, in which she challenged the Association’s authority to adopt the restriction. Relying on Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), Costain argued the original CC&Rs gave no reasonable notice that short-term rentals could later be banned: the declaration allows “rent signs” and lets owners delegate common-area rights to tenants. The Association countered that the original CC&Rs’ single-family-residence requirement and ban on “business, professional, commercial or institutional purposes” gave owners notice, and that the amendment merely clarified that prohibited commercial operations include short-term bed-and-breakfast-style leases. In an August 9, 2022 under-advisement ruling, the court denied the motion to dismiss because key CC&R terms are undefined and required factual development. The parties then settled at a court-ordered settlement conference, and on December 14, 2022 the court accepted the notice of settlement and placed the case on the dismissal calendar for dismissal on or after February 14, 2023.

Key Issues & Findings

The court applied the familiar Rule 12(b)(6) standard: a claim is dismissed only when the plaintiff is not entitled to relief under any interpretation of the facts, the court looks only to the pleading and its well-pled factual allegations, conclusory statements are insufficient, and factual allegations are assumed true in the light most favorable to the pleading party. Against that standard, Costain argued that CC&Rs are contracts interpreted as a matter of law and that under Kalway v. Calabria Ranch HOA an original declaration must give sufficient notice of the possibility of a future amendment. She pointed to features of the original CC&Rs that contemplate renting — Article VIII allows “rent signs” and Article III, Section 2 permits a homeowner to delegate common-area enjoyment rights to tenants — and argued the general amendment provision gave her no reasonable notice that rentals under 30 days could be prohibited, a restriction she said also decreased her property’s value.

The Association raised a threshold procedural objection — that Costain’s position failed because she had not filed a declaratory relief action, as the Kalway plaintiff had — and a substantive defense: the original CC&Rs required each lot to be used only for a single-family residence and prohibited use of the premises for “business, professional, commercial or institutional purposes,” so owners had notice of use restrictions and the amendment provisions could be used to clarify that prohibited commercial operations include short-term, bed-and-breakfast-style leases. Costain replied that the Association was not clarifying an existing restriction but adding a new one untethered to the original CC&Rs, that short-term rentals are consistent with single-family-residence use, and that a short-term rental is no more a business operation than a long-term rental.

The court resolved the motion on two grounds. It first rejected the Association’s procedural argument, holding that under the Arizona Rules of Civil Procedure a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. It then found that key terms and provisions in the CC&Rs — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are not defined, and that further development of those terms was appropriate during the course of the action to determine whether the Fifth Amendment was properly adopted. Because the court could not conclude at the pleading stage that the complaint failed to support the Association’s allegations, and because Kalway itself was initially addressed by the trial court on motions for summary judgment rather than a motion to dismiss, the motion was denied. The case never reached that developed record: after a September 27, 2022 scheduling order requiring a mandatory settlement conference, the parties settled before Judge Pro Tempore John D. Lierman, and on December 14, 2022 the court accepted the notice of settlement, deemed pending matters moot, and placed the case on the dismissal calendar.

Why It Matters

Short-term-rental amendments are one of the most contested moves an Arizona HOA can make, and this case shows how a Kalway notice challenge to such an amendment actually plays out in superior court. Two practical points emerge from the ruling. First, the procedural holding: a homeowner does not need to file her own declaratory judgment action to attack an amendment’s validity — she can raise it as a defense when the association litigates against her. Second, drafting matters: because Villa Sendero’s CC&Rs never defined “single-family residence,” “business, professional, commercial or institutional purposes,” or “rent,” the court could not resolve the amendment’s validity on the pleadings and sent the dispute into discovery.

The case also illustrates a common endgame. Rather than litigate through summary judgment the way Kalway itself was decided, the parties settled at a court-ordered settlement conference roughly four months after the motion to dismiss was denied, and the case went onto the dismissal calendar. That means the ruling offers no merits answer on whether the 30-day rental ban survives Kalway — and as a superior-court decision it binds only these parties in any event.

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Richard J. Murtland v. Astragal Condominium Unit Owners Association: Arizona HOA Superior Court Case Guide

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CC&R Amendments & Rental Restrictions | A.R.S. §§ 33-1227, 33-1260.01 | CV2015-091102

In this Maricopa County Superior Court case, condominium owners in the Scottsdale Astragal community argued that an amendment imposing a six-month minimum rental period changed the use to which their units were restricted and therefore required the unanimous consent of all unit owners under A.R.S. § 33-1227(D). The court held the rental restriction was instead subject to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Declaration, noted that A.R.S. § 33-1260.01(A) lets owners rent their units only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions, found the six-month rule not unreasonable, and dismissed the case with prejudice.

Last updated July 1, 2026. Case: Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association, Maricopa County Superior Court No. CV2015-091102.

Download summary-judgment ruling

Scope note: This page covers Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association (Maricopa County Superior Court No. CV2015-091102) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the January 12, 2016 under-advisement ruling on the cross-motions for summary judgment (downloadable above) and the February 24, 2016 judgment entry; the procedural timeline below tracks each collected minute entry. Currency caveat: the court entered a final judgment under Rule 54(c) on February 24, 2016, stating that no further matters remained in the case, and the collected minute entries show no later activity — this page does not track whether any appeal was taken. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court upheld the Association’s amendment imposing a six-month minimum rental period on all residences. It held the rental restriction was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) — which applies to amendments that, among other things, change “the use to which any unit is restricted” — but instead to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also pointed to A.R.S. § 33-1260.01(A), which lets a unit owner rent a unit only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions. Finding the six-month restriction not unreasonable, with potential benefits for the community at large, and finding no due-process violation because the owners had ample notice the Declaration could be amended, the court denied the owners’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice. Final judgment including the Association’s attorneys’ fees followed in February 2016.

Case Participants

Petitioner Side

  • Richard J. Murtland (Plaintiff)
    Condominium owner in the Scottsdale Astragal community who challenged the six-month minimum rental amendment, contending he was damaged because he could not generate income through short-term rentals.
  • Barbara Bergfield (Plaintiff)
    Co-plaintiff condominium owner. The court found both plaintiffs owned condominiums in the Scottsdale Astragal Condominium Unit Owners Association.
  • Erin Selene Iungerich (Counsel)
    Substituted in as the plaintiffs’ attorney of record in July 2015 (a substitution within the same firm as J. Roger Wood) and appeared for the plaintiffs at the January 8, 2016 oral argument.
  • J. Roger Wood (Counsel)
    The plaintiffs’ original attorney of record, replaced by Erin S. Iungerich in a within-firm substitution in July 2015; he also appeared for the plaintiffs at the January 8, 2016 oral argument.

Respondent Side

  • Astragal Condominium Unit Owners Association (Defendant)
    Scottsdale condominium association whose owners voted, under the Declaration’s 67% amendment provision, to impose a six-month minimum rental period on all residences; it prevailed on cross-summary judgment and recovered its attorneys’ fees.
  • J. Gary Linder (Counsel)
    Counsel for the Association, appearing on its behalf at the January 8, 2016 oral argument.

Neutral Parties

  • David K. Udall (Judge)
    Maricopa County Superior Court judge who heard the cross-motions for summary judgment, issued the January 12, 2016 under-advisement ruling, and signed the February 2016 final judgment.

What happened

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.

Procedural timeline

Step Before suit The Astragal Condominium Unit Owners Association amends its Declaration — under the Declaration’s provision allowing amendment by a 67% vote of owners — to impose a six-month minimum rental period on all residences leased or rented to third parties.
Step 2015 Condominium owners Richard J. Murtland and Barbara Bergfield sue the Association in Maricopa County Superior Court (CV2015-091102), claiming damages because they cannot generate income through short-term rentals.
Step 2015-07-06 The court grants the plaintiffs’ notice of substitution of counsel (within firm), allowing Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.
Step 2015-10-23 With the plaintiffs’ motion for summary judgment and the Association’s cross-motion fully briefed, the court sets oral argument for January 8, 2016 before Judge David K. Udall.
Step 2016-01-08 Oral argument is held on the cross-motions for summary judgment; the court takes the matter under advisement.
Step 2016-01-12 Under-advisement ruling: the rental restriction is not subject to A.R.S. § 33-1227(D)’s unanimous-consent requirement but to the 67% rule of § 33-1227(A) as adopted by the Declaration; Dreamland Villa is distinguished; the plaintiffs’ motion is denied, the Association’s cross-motion is granted, and the case is dismissed with prejudice.
Step 2016-02-24 The court grants the Association’s application for attorneys’ fees and awards judgment in its favor; the formal written judgment, signed February 22 and entered February 24, 2016, is a final judgment under Rule 54(c), with no further matters remaining.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/richard-j-murtland-v-astragal-condominium-unit-owners-association/raw/: 5 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2015-07-06

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2015-07-06_001_minute-entry.pdf
Source 2 2015-10-23

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2015-10-23_002_oral-argument-set.pdf
Source 3 2016-01-08

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-01-08_003_minute-entry.pdf
Source 4 2016-01-12

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-01-12_004_under-advisement-ruling.pdf
Source 5 2016-02-24

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-02-24_005_minute-entry.pdf

FAQ

Can a condominium association restrict short-term rentals by amending its CC&Rs?

In this case, yes. The Astragal Declaration allowed 67% of the Association’s owners to vote to change the governing Declaration, and the owners used that provision to impose a six-month minimum rental period on all residences. The court upheld the amendment, holding it was subject to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration, and found the six-month restriction was not unreasonable and had potential benefits for the community at large.

Didn’t changing how units can be used require unanimous consent under A.R.S. § 33-1227(D)?

That was the owners’ central argument. Section 33-1227(D) requires the unanimous consent of unit owners for amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or “the use to which any unit is restricted.” The court found the six-month rental restriction was not subject to that unanimous-consent requirement — it fell under the 67% amendment rule in A.R.S. § 33-1227(A) as the Astragal Declaration adopted it.

What role did A.R.S. § 33-1260.01 play in the ruling?

The court quoted A.R.S. § 33-1260.01(A): “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.” In other words, the statute itself contemplates that a declaration can prohibit rentals or set rental time period restrictions — which is what the Astragal amendment did.

Why didn’t Dreamland Villa v. Raimey help the owners?

The plaintiffs relied on Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010), but the court found it distinguishable. In Dreamland, a community used a majority vote to require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and knew when they bought their units that the Declaration could be amended by a 67% majority vote in the future. The court held the Dreamland holding did not apply.

Did the owners recover anything?

No. The court denied their motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice on January 12, 2016. It then granted the Association’s application for attorneys’ fees and, on February 24, 2016, entered a final judgment in the Association’s favor under Rule 54(c).

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent. The case is still useful reading: it shows how a Maricopa County judge applied the Condominium Act’s amendment rules — the 67% supermajority in A.R.S. § 33-1227(A) versus the unanimous-consent triggers in § 33-1227(D) — to a rental-restriction amendment, and it illustrates the fee-shifting risk owners face when a challenge to a CC&R amendment fails.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citationCV2015-091102 (Maricopa County Superior Court)
Court / tribunalSuperior Court
Decision / key dateJanuary 12, 2016
Judge / panelHon. David K. Udall
PartiesRichard J. Murtland and Barbara Bergfield (Plaintiffs, condominium owners) v. Astragal Condominium Unit Owners Association (Defendant)
Governing law
Topics
amendmentscc-and-rscovenantsrental-restrictionsattorneys-fees
Outcome / holding

The superior court granted the association summary judgment on its cross-motion and dismissed the owners’ case with prejudice, holding that a declaration amendment imposing a six-month minimum rental period was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) but to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the declaration, that the restriction was not unreasonable, and that the owners’ due-process rights were not violated because they had ample notice the declaration could be amended.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package5 PDFs
Step-by-step docket roadmap7 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Two owners of condominiums in the Scottsdale Astragal community sued their association after the owners amended the Declaration, under its 67%-vote amendment provision, to impose a six-month minimum rental period on all residences leased or rented to third parties. The owners claimed they were damaged because they could not generate income through short-term rentals, and argued the amendment changed the use to which their units were restricted and therefore required unanimous consent under A.R.S. § 33-1227(D). On cross-motions for summary judgment, with the significant facts undisputed, the court held in a January 12, 2016 under-advisement ruling that the rental restriction was not subject to the unanimous-consent requirement but to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration. It distinguished Dreamland Villa Community Club Inc. v. Raimey, found the six-month restriction not unreasonable, denied the owners’ motion, granted the association’s cross-motion, and dismissed the case with prejudice. A final Rule 54(c) judgment awarding the association its attorneys’ fees was entered February 24, 2016.

Key Issues & Findings

The court began from undisputed facts: both plaintiffs owned condominiums in the Scottsdale Astragal community, the Declaration allowed 67% of the Association’s owners to vote to change the governing Declaration, and the Association used that provision to amend the Declaration to impose a six-month minimum rental period on all residences leased or rented to third parties. The plaintiffs claimed damage because they could not generate income through short-term rentals. The court set the statutory frame with A.R.S. § 33-1227(D), which — except as expressly permitted or required elsewhere in the Condominium Act — bars amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or “the use to which any unit is restricted” absent the unanimous consent of the unit owners. It also quoted A.R.S. § 33-1260.01(A): a unit owner may use the unit as a rental property “unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.” On that framework the court found the rental restriction was not subject to § 33-1227(D)’s unanimous-consent requirement; it was instead subject to the 67% rule in § 33-1227(A) as adopted by the Astragal Declaration.

The court then rejected the plaintiffs’ reliance on 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 require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and “knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future,” so the Dreamland holding did not apply. The court further found the six-month leasing restriction not unreasonable, with potential benefits for the community at large, and found no due-process violation because the plaintiffs had ample notice of a potential change in short-term lease restrictions when they purchased their properties.

On those findings the court denied the plaintiffs’ motion for summary judgment, granted judgment for the Association on its cross-motion, and dismissed the case with prejudice. After reviewing the Association’s application for attorneys’ fees and the plaintiffs’ response, the court granted the application and awarded judgment in the Association’s favor in a formal written judgment signed February 22 and entered February 24, 2016 — a final judgment under Rule 54(c), with no further matters remaining in the case.

Why It Matters

Short-term-rental restrictions are one of the most common flashpoints in Arizona condominium communities, and this case shows how a Maricopa County judge sorted the key statutory question: which amendments require every owner’s consent under A.R.S. § 33-1227(D), and which need only the supermajority the declaration itself sets under § 33-1227(A). Owners challenging a rental-restriction amendment often assume that limiting rentals “changes the use to which the unit is restricted” and so demands unanimity; here the court held a six-month minimum rental period adopted by the Declaration’s 67% vote was valid without unanimous consent.

The ruling also illustrates two recurring themes. First, courts weigh what buyers signed up for: because the plaintiffs bought into a community whose Declaration could be amended by a 67% vote, the court found they had ample notice that rental rules could change, and it distinguished Dreamland Villa, where a majority vote forced obligations onto people who had never joined the association. Second, losing a challenge like this can be expensive — the case ended with a final judgment awarding the association its attorneys’ fees. As a superior-court decision, the ruling binds only the parties and is not precedent, but it is a clean, compact example of how these disputes get resolved on cross-motions for summary judgment.

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Bergeson v. West Frontier Condominiums HOA, Inc.: HOA Court Case Guide

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Arizona HOA Case Summary

Division Two held that a condominium association was entitled to judgment as a matter of law on a wrongful-death claim because there was no evidence it created, knew of, or had reason to suspect the hidden ceiling-wiring defect that caused a fatal fire.

Arizona Court of Appeals | No. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision) | Decided 2020-10-30 | Nonprecedential / citation-limited

Download the ruling PDF FAQ

Scope note: This educational page summarizes Bergeson v. West Frontier Condominiums HOA, Inc., a Arizona Court of Appeals HOA-related authority. It is not legal advice.

The takeaway

The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. The plaintiffs presented no evidence that the association created the defective ceiling wiring, had actual or constructive notice of it, or was vicariously liable for another’s negligence. The trial court reversibly erred by admitting irrelevant and unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving an erroneous non-delegable-duty (Ft. Lowell) instruction, which together permitted the jury to hold the association to a standard approaching strict liability contrary to Arizona premises-liability law. Judgment vacated and remanded for entry of judgment in favor of the association.

Case Participants

Petitioner Side

  • West Frontier Condominiums HOA, Inc. (Defendant/Appellant)
    Arizona corporation; the unit owners’ association for the Frontier Condominiums in Payson.
  • Lynn M. Allen (Counsel)
    Tyson & Mendes LLP (Phoenix)
    Counsel for Defendant/Appellant. Carpenter Hazlewood / CHDB was not involved in this case.

Respondent Side

  • Christopher Bo Bergeson (Plaintiff/Appellee)
    Surviving child of Lynn Renee Bergeson; wrongful-death plaintiff.
  • Amy Lynn Bergeson (Plaintiff/Appellee)
    Surviving child of Lynn Renee Bergeson; wrongful-death plaintiff.
  • Arthur E. Lloyd (Counsel)
    Lloyd Law Group of Arizona P.L.L.C. (Payson)
    Counsel for Plaintiffs/Appellees.
  • Stanley G. Feldman (Counsel)
    Miller, Pitt, Feldman & McAnally P.C. (Tucson)
    Counsel for Plaintiffs/Appellees.
  • Timothy P. Stackhouse (Counsel)
    Miller, Pitt, Feldman & McAnally P.C. (Tucson)
    Counsel for Plaintiffs/Appellees.

Neutral Parties

  • Philip G. Espinosa (Judge)
    Authored the memorandum decision.
  • Sean E. Eppich (Judge)
    Presiding Judge; concurred.
  • Peter J. Eckerstrom (Judge)
    Concurred.

What happened

West Frontier Condominiums HOA, Inc. is the unit owners’ association for the Frontier Condominiums in Payson, Arizona. In October 2005, unit owners David and Joan Levengood rented their unit to Lynn Bergeson.

In 2006, with the Levengoods’ permission but without seeking permission from or notifying the association, Lynn replaced an overhead light fixture in the unit with a ceiling fan. In 2007, a smoldering fire ignited in the wiring above the fan, producing lethal levels of carbon monoxide that killed Lynn.

Lynn’s children, Christopher and Amy Bergeson, brought a wrongful-death action against the Levengoods and West Frontier, claiming the association had negligently failed to use reasonable care to discover and fix faulty wiring above the ceiling fan. The Court of Appeals twice reversed the trial court’s entry of summary judgment in the association’s favor, and in 2019 the case proceeded to a jury trial on the negligence claim.

The jury returned a verdict for the Bergesons, apportioning seventy-five percent of the fault to West Frontier and twenty-five percent to non-parties. After the trial court entered an amended judgment for the Bergesons, the association filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. The trial court denied the motions, and West Frontier appealed.

On appeal, the association argued the plaintiffs had presented no evidence it breached any duty to Lynn. The court agreed there was no evidence the association created the defect: the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, years before the HOA incorporated in March 2007. The plaintiffs’ ‘mere continuation’ successor-liability theory, resting solely on A.R. Teeters & Associates, failed because they showed no assumption of liabilities and no genuine continuation, and even a continuation would not have created a defect that pre-dated the association.

On the question of notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) that were discovered only after the fire. That evidence was irrelevant and unfairly prejudicial: it was unrelated to the living-room ceiling wiring, one of the plaintiffs’ own experts admitted the kitchen defects had nothing to do with the fire, and it allowed the jury to impute notice the association never had. A duty to inspect arises only when there is a reason to suspect a defect, and no prior similar incident provided one.

Finally, the court held the non-delegable-duty instruction (drawn from Ft. Lowell-NSS Ltd. Partnership v. Kelly and Restatement (Second) of Torts Section 422) was erroneous. It reached ‘third parties’ who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine could not be used to make the association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain. Because the irrelevant evidence and the flawed instruction together held the association to a standard approaching strict liability, the court vacated the judgment and remanded for entry of judgment in favor of West Frontier.

This decision illustrates that an Arizona condominium association is not an insurer of its members’ safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required. Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

Litigation record

Step 1 1984-1985

Electrical work on the Frontier Condominiums, including the Levengoods’ unit, is inspected and approved by the Town of Payson.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1986

The Condominium Declaration establishing the Frontier Condominium is recorded.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1995

First amended declarations are recorded, with West Frontier LLC as declarant.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2005-10

David and Joan Levengood rent their unit to Lynn Bergeson.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2006

Lynn replaces an overhead light fixture with a ceiling fan, with the Levengoods’ permission but without notifying the association.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2007-03

West Frontier Condominiums HOA, Inc. is incorporated.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2007

A smoldering fire in the wiring above the ceiling fan produces lethal carbon monoxide; Lynn Bergeson dies.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 2008

The Bergesons file a wrongful-death suit in Gila County Superior Court (No. CV20080002).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 9 2013-12-24

The Court of Appeals reverses summary judgment entered for the association (No. 2 CA-CV 2013-0045).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 10 2017-08-10

The Court of Appeals again reverses summary judgment for the association (No. 2 CA-CV 2016-0134).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 11 2019

A jury trial results in a verdict for the Bergesons, apportioning 75% of the fault to West Frontier.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 12 2020-10-30

Division Two vacates the judgment and remands for entry of judgment in favor of the association.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 13 2021-05-04

The Arizona Supreme Court denies the petition for review (per docket minutes).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/bergeson-v-west-frontier-condo-hoa/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2026-07-01

Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2026-07-01_001_opinion.pdf

FAQ

What was Bergeson v. West Frontier Condominiums HOA, Inc. about?

A tenant, Lynn Bergeson, died in 2007 from carbon monoxide caused by a smoldering fire in the wiring above a ceiling fan she had installed in her rented condominium. Her children sued the condominium association for wrongful death, claiming it negligently failed to discover and repair faulty ceiling wiring. The case reached the Arizona Court of Appeals after a jury found the association 75% at fault.

Why did the Court of Appeals rule in favor of the HOA?

The court held the association was entitled to judgment as a matter of law because the plaintiffs presented no evidence it created the wiring defect, actually knew of it, or had any reason to suspect it. The building’s electrical work had passed inspection in 1984-85, years before the HOA incorporated in 2007, and nothing gave the association a reason to open ceilings or walls to look for hidden defects.

Is this decision binding precedent in Arizona?

No. It is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by the rules. It is at most persuasive authority and is presented here for educational purposes only.

What duty does an Arizona condominium association owe for common-area maintenance?

Under A.R.S. Section 33-1247(A) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements. That is not strict liability: a plaintiff must still prove the association created a dangerous condition, actually knew of it, or should have discovered it through reasonable care, and a duty to inspect arises only when there is a reason to suspect a defect.

Why was the kitchen code-violation evidence a problem at trial?

The kitchen violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) were discovered only after the fire and were unrelated to the living-room ceiling wiring; one of the plaintiffs’ own experts admitted they had nothing to do with the fire. The Court of Appeals held that admitting this irrelevant and unfairly prejudicial testimony, which let the jury infer notice the association never had, was reversible error.

What is a ‘non-delegable duty,’ and why didn’t it apply here?

A non-delegable duty is one a premises owner keeps responsibility for even when it properly hires an independent contractor to do the work. The court held the jury instruction was erroneous because no association employee or independent contractor was shown to be negligent, and the doctrine cannot be stretched to make an association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citationNo. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision)
Court / tribunalCourt of Appeals
Decision / key dateOctober 30, 2020
Judge / panelPhilip G. Espinosa (author), Sean E. Eppich (Presiding), Peter J. Eckerstrom
PartiesSurviving children of a deceased tenant (wrongful-death plaintiffs/appellees) v. the condominium unit owners’ association (defendant/appellant).
Governing law
Topics
procedurecc-and-rscovenants
Outcome / holding

The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. The plaintiffs presented no evidence that the association created the defective ceiling wiring, had actual or constructive notice of it, or was vicariously liable for another’s negligence. The trial court reversibly erred by admitting irrelevant and unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving an erroneous non-delegable-duty (Ft. Lowell) instruction, which together permitted the jury to hold the association to a standard approaching strict liability contrary to Arizona premises-liability law. Judgment vacated and remanded for entry of judgment in favor of the association.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap13 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

West Frontier Condominiums HOA, Inc. is the unit owners’ association for the Frontier Condominiums in Payson, Arizona. In October 2005 the unit owners, David and Joan Levengood, rented their unit to Lynn Bergeson. In 2006, with the Levengoods’ permission but without notifying the association, Lynn replaced an overhead light fixture with a ceiling fan. In 2007 a smoldering fire ignited in the wiring above the fan, producing lethal levels of carbon monoxide that killed Lynn. Her surviving children, Christopher and Amy Bergeson, sued the Levengoods and the association for wrongful death, alleging the HOA had negligently failed to discover and repair faulty ceiling wiring. After the Court of Appeals twice reversed summary judgment for the association, a 2019 Gila County jury found for the Bergesons and apportioned seventy-five percent of the fault to West Frontier. The trial court denied the association’s renewed motion for judgment as a matter of law, and West Frontier appealed. Reviewing de novo, Division Two of the Court of Appeals held the association was entitled to judgment as a matter of law. The plaintiffs offered no evidence that the HOA created the wiring defect, actually knew of it, or had any reason to suspect it; the building’s electrical work had passed municipal inspection in 1984-85, years before the HOA incorporated in March 2007. The court further held the trial court reversibly erred by admitting irrelevant, unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving a non-delegable-duty instruction unsupported by the evidence. Together these errors effectively imposed a standard approaching strict liability. The judgment was vacated and remanded for entry of judgment in favor of the association.

Key Issues & Findings

Reviewing the denial of judgment as a matter of law de novo but in the light most favorable to the Bergesons, the court analyzed the negligence elements of duty, breach, and proximate cause. A premises owner is liable only for dangerous conditions it created, actually knew of, or should have discovered through reasonable care. On creation, the record showed the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, before the HOA incorporated in 2007; the plaintiffs’ ‘mere continuation’ successor-liability theory under A.R. Teeters failed for lack of any evidence of an assumption of liabilities, and even a continuation would not have created the pre-existing defect. On notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations found only after the fire: that evidence was irrelevant under Rule 401/402 (one of the plaintiffs’ own experts conceded the kitchen defects had nothing to do with the fire), unrelated to the living-room ceiling wiring, and unfairly prejudicial because it let the jury infer notice the association never had. A duty to inspect arises only when there is ‘reason to suspect’ a defect (Piccola), and no prior similar incident supplied one. Finally, the non-delegable-duty instruction under Ft. Lowell and Restatement (Second) of Torts Section 422 was erroneous: it reached ‘third parties’ who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine cannot be stretched to make an association liable for a unit owner’s own alterations. Together the irrelevant evidence and the flawed instruction held the association to a near-strict-liability standard that Arizona law does not recognize.

Why It Matters

This decision illustrates that an Arizona condominium association is not an insurer of its members’ safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required.

Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

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Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC: HOA Court Case Guide

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Arizona HOA case (non-precedential)

The Court of Appeals reversed summary judgment for a lot owner over a saguaro-with-sunglasses sculpture, ruling that CC&R silence on ‘sculptures’ was not dispositive and that the association must apply its governing documents reasonably.

Arizona Court of Appeals | No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision) | Decided 2011-05-31 | Nonprecedential / citation-limited

Read the source opinion FAQ

Scope note: This educational page summarizes Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Citation caveat: This unpublished memorandum decision is included for practical architectural-review context; no local ruling PDF is provided for this page.

Carpenter Hazlewood represented the homeowners association on appeal.

The takeaway

Reversing summary judgment entered for the lot owner, the Court of Appeals held that genuine issues of material fact remained as to whether the yard sculpture was subject to the Association’s CC&R approval and architectural-control provisions. The absence of the word ‘sculpture’ in the CC&Rs was not dispositive, and the Association and any reviewing committee must apply the governing documents reasonably. The matter was remanded for further proceedings.

Case Participants

Petitioner Side

  • Pinnacle Peak Vistas III Homeowners’ Association (Plaintiff-Appellant)
    Community association that sought removal of the yard sculpture under the CC&Rs; prevailed on appeal, obtaining reversal and remand.
  • Joshua M. Bolen (Counsel)
    Carpenter Hazlewood Delgado & Wood, P.L.C.
    Appellate counsel for the Association; Carpenter Hazlewood served as counsel in this matter (the firm is a frequent HOA-side firm in Arizona).
  • Kellie J. Callahan (Counsel)
    Carpenter Hazlewood Delgado & Wood, P.L.C.
    Appellate counsel for the Association, with Carpenter Hazlewood Delgado & Wood, P.L.C.

Respondent Side

  • Derailed, LLC (Defendant-Appellee)
    Lot owner in the Pinnacle Peak Vistas III subdivision; won summary judgment below, which the Court of Appeals reversed.
  • Arvin Bernstein (Principal of Defendant-Appellee / homeowner)
    Principal of Derailed, LLC and resident of the property where the saguaro-with-sunglasses sculpture was installed.
  • Steven R. Rensch (Counsel)
    Rensch Law
    Appellate counsel for Derailed, LLC.

Neutral Parties

  • Sheldon H. Weisberg (Judge)
    Judge of the Arizona Court of Appeals, Division One; authored the unanimous memorandum decision. Other panel members are not identified in available sources.

What happened

Derailed, LLC owned a lot in the Pinnacle Peak Vistas III subdivision in Scottsdale, Arizona, a planned community governed by a recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs). The company’s principal, Arvin Bernstein, lived on the property. In 2006 the owner installed a metal yard sculpture in the shape of a saguaro cactus wearing sunglasses.

Roughly two years after the sculpture went up, the Pinnacle Peak Vistas III Homeowners’ Association sent the owner a letter treating the sculpture as an unapproved modification of the property. The Association demanded that the sculpture be removed, taking the position that it violated the community’s CC&Rs and its architectural or design-review requirements.

When the dispute was not resolved, the Association filed suit against Derailed, LLC in the Maricopa County Superior Court seeking to enforce the governing documents. Derailed defended on the ground, among others, that the CC&Rs did not specifically address sculptures and therefore did not authorize the Association to compel removal of this particular yard feature.

The Superior Court granted summary judgment in favor of Derailed, ending the case at the trial level in the owner’s favor. The Association appealed that ruling to the Arizona Court of Appeals, Division One, arguing that the sculpture was subject to the community’s approval and architectural-control provisions and that, at a minimum, disputed facts should have prevented summary judgment.

The Court of Appeals, in a unanimous memorandum decision authored by Judge Sheldon Weisberg, reversed. The panel acknowledged that the CC&Rs do not use the word ‘sculpture,’ but held that this omission did not entitle the owner to judgment as a matter of law. The court framed the real question as whether the sculpture fell within the Declaration’s broader provisions on structures, exterior changes, and design review.

Because material factual questions remained about whether and how the CC&Rs and community rules reached the sculpture, the court concluded that summary judgment was improper. It emphasized that the Association and any committee reviewing the sculpture must act reasonably in applying the governing documents, and it expressly declined to decide whether the sculpture was ‘unsightly,’ leaving those issues for the trial court.

The Court of Appeals reversed the summary judgment and remanded the case to the Superior Court for further proceedings consistent with its decision. Because the ruling is an unpublished memorandum decision, it is non-precedential and may be cited only as permitted by the applicable rules of the Arizona courts.

For Arizona homeowners and boards, this decision illustrates that a community’s authority to regulate what appears on a lot is not necessarily limited to the exact objects listed in the CC&Rs. The court declined to treat the Declaration’s silence on ‘sculptures’ as a loophole; instead it asked whether the item fell within broader categories such as structures, exterior modifications, or matters subject to architectural or design review. Owners considering a distinctive yard feature, and boards deciding whether to enforce, should read the governing documents as a whole rather than searching for a single missing word. At the same time, the opinion underscores a limit on association power: the Association and any reviewing committee must apply the CC&Rs reasonably, and courts will not simply defer to a subjective label like ‘unsightly.’ Just as important is the case’s procedural posture. Because disputed facts remained about how the documents applied, summary judgment was inappropriate and the dispute had to be developed further below. Finally, this is an unpublished memorandum decision, so it is non-precedential and carries no binding authority; it is useful here only as a neutral, educational illustration of how these CC&R and architectural-review questions can arise.

Counsel note: Carpenter Hazlewood represented the association in this architectural-review appeal.

Litigation record

Step 1 2006

The lot owner (Derailed, LLC, principal Arvin Bernstein) installs a metal yard sculpture of a saguaro cactus wearing sunglasses in the Pinnacle Peak Vistas III subdivision.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2008

About two years later, the Homeowners’ Association sends a letter declaring the sculpture an unapproved modification and demanding its removal under the CC&Rs and architectural-review requirements.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2010

The Association sues Derailed, LLC in Maricopa County Superior Court; the trial court grants summary judgment to the owner, and the Association appeals (No. 1 CA-CV 10-0604).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2011-05-31

The Arizona Court of Appeals, Division One, reverses the summary judgment and remands, holding fact questions remain and that the Association must apply the CC&Rs reasonably.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was the dispute in Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC about?

A homeowners’ association in a Scottsdale subdivision objected to a metal yard sculpture, shaped like a saguaro cactus wearing sunglasses, that a lot owner (Derailed, LLC, whose principal was Arvin Bernstein) had installed. The Association treated the sculpture as an unapproved property modification and sued to have it removed under the community’s CC&Rs and architectural-review requirements.

Who won the case?

It was a split outcome by stage. The trial court granted summary judgment to the owner, but the Arizona Court of Appeals reversed that ruling in favor of the Association and sent the case back for further proceedings. The appellate decision did not finally decide whether the sculpture had to be removed; it decided only that the dispute could not be resolved on summary judgment.

Did the CC&Rs specifically ban sculptures?

No. The court acknowledged that the CC&Rs did not use the word ‘sculpture.’ It held, however, that this silence did not automatically entitle the owner to win. The key question was whether the sculpture fell within the CC&Rs’ broader provisions on structures, exterior modifications, and design or architectural review, which remained a disputed factual issue.

Is this decision binding precedent in Arizona?

No. This is an unpublished memorandum decision, which means it is non-precedential. It does not establish binding law and may be cited only as authorized by the applicable Arizona court rules. It is presented here purely as a neutral, educational illustration of how CC&R and architectural-review disputes can arise.

What does ‘reversed and remanded’ mean here?

‘Reversed’ means the Court of Appeals overturned the trial court’s summary judgment for the owner. ‘Remanded’ means the case was sent back to the Maricopa County Superior Court to continue, because genuine issues of material fact remained that a court could not resolve without further proceedings.

What is the practical takeaway for homeowners and boards?

Read the governing documents as a whole. A community’s authority may extend to items not named word-for-word in the CC&Rs if they fall within broader categories like structures or exterior modifications. At the same time, associations and their review committees must apply the documents reasonably, and courts will not simply accept a subjective label such as ‘unsightly.’ Homeowners and boards facing a similar issue should consult a qualified Arizona attorney about their specific facts.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citationNo. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)
Court / tribunalCourt of Appeals
Decision / key dateMay 31, 2011
Judge / panelSheldon H. Weisberg
PartiesA Scottsdale homeowners’ association sued a lot owner over an unapproved metal yard sculpture; the Court of Appeals reversed summary judgment for the owner, holding fact questions remained on whether the CC&Rs and architectural-review rules reached the sculpture.
Topics
architectural-reviewcc-and-rscovenantsproceduregood-faith-and-fair-dealing
Outcome / holding

Reversing summary judgment entered for the lot owner, the Court of Appeals held that genuine issues of material fact remained as to whether the yard sculpture was subject to the Association’s CC&R approval and architectural-control provisions. The absence of the word ‘sculpture’ in the CC&Rs was not dispositive, and the Association and any reviewing committee must apply the governing documents reasonably. The matter was remanded for further proceedings.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap4 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Pinnacle Peak Vistas III Homeowners’ Association sued Derailed, LLC, a lot owner in a Scottsdale subdivision whose principal was homeowner Arvin Bernstein, after Derailed installed a metal yard sculpture depicting a saguaro cactus wearing sunglasses. The sculpture was erected in 2006; about two years later the Association sent a letter declaring it an unapproved modification and demanding its removal, contending it violated the community’s Declaration of Covenants, Conditions and Restrictions (CC&Rs) and the community’s architectural or design-review requirements. The Maricopa County Superior Court granted summary judgment to Derailed, and the Association appealed. The Arizona Court of Appeals, Division One, reversed and remanded in an unpublished memorandum decision authored by Judge Sheldon Weisberg. The court noted that the CC&Rs do not specifically mention ‘sculptures,’ but rejected the idea that this omission entitled the owner to judgment as a matter of law. Factual questions remained about whether the sculpture qualified as a structure or exterior change subject to the approval provisions and how the Association’s rules applied. The court emphasized that the Association and any reviewing committee must act reasonably in applying the governing documents, while declining to decide whether the sculpture itself was ‘unsightly.’ Because disputed issues of material fact precluded summary judgment, the case was remanded for further proceedings. As a memorandum decision, the opinion is non-precedential and may be cited only as authorized by applicable court rules.

Key Issues & Findings

The court reviewed the grant of summary judgment de novo, viewing the evidence in the light most favorable to the Association as the party opposing the motion. It reasoned that the CC&Rs’ silence on the specific word ‘sculpture’ did not, by itself, place the yard installation outside the Declaration’s reach; the operative question was whether the sculpture fell within the CC&Rs’ broader provisions governing structures, exterior modifications, and design or architectural review. Because the record left open whether the sculpture was a modification subject to approval and how the community’s rules applied to it, those were disputed factual issues for the trial court rather than questions the appellate court could resolve as a matter of law. The court also stressed that the Association and any committee charged with reviewing the sculpture must exercise their authority reasonably when applying the governing documents, and it expressly declined to opine on whether the sculpture was ‘unsightly,’ leaving aesthetic judgments and the reasonableness of enforcement to be developed on remand.

Why It Matters

For Arizona homeowners and boards, this decision illustrates that a community’s authority to regulate what appears on a lot is not necessarily limited to the exact objects listed in the CC&Rs. The court declined to treat the Declaration’s silence on ‘sculptures’ as a loophole; instead it asked whether the item fell within broader categories such as structures, exterior modifications, or matters subject to architectural or design review. Owners considering a distinctive yard feature, and boards deciding whether to enforce, should read the governing documents as a whole rather than searching for a single missing word.

At the same time, the opinion underscores a limit on association power: the Association and any reviewing committee must apply the CC&Rs reasonably, and courts will not simply defer to a subjective label like ‘unsightly.’ Just as important is the case’s procedural posture. Because disputed facts remained about how the documents applied, summary judgment was inappropriate and the dispute had to be developed further below. Finally, this is an unpublished memorandum decision, so it is non-precedential and carries no binding authority; it is useful here only as a neutral, educational illustration of how these CC&R and architectural-review questions can arise.

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Gelb v. Department of Fire, Building & Life Safety: HOA Court Case Guide

Posted on by

Arizona HOA Case Explainer

A Sedona CC&R dispute became the vehicle for striking down Arizona’s first administrative process for HOA disputes — and reshaping where those disputes are heard.

Arizona Court of Appeals | 225 Ariz. 515, 241 P.3d 512 (App. 2010) | Decided 2010-10-28

Read the source opinion FAQ

Scope note: This educational page summarizes Gelb v. Department of Fire, Building & Life Safety, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

Carpenter Hazlewood represented the homeowner in the administrative-hearing dispute that produced this separation-of-powers ruling.

The takeaway

The statutory administrative-hearing process in A.R.S. sections 41-2198 to -2198.05 — which empowered the Department of Fire, Building and Life Safety to adjudicate disputes between homeowners and planned-community/condominium associations — violates the separation-of-powers provision of Article 3 of the Arizona Constitution. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction.

Case Participants

Petitioner Side

  • Chris Gelb (Appellant)
    Homeowner in the Sedona Casa Contenta planned community; plaintiff/appellant who invoked the administrative process against her HOA.
  • Frederick M. “Fritz” Aspey (Counsel)
    Aspey, Watkins & Diesel, P.L.L.C.
    Counsel for plaintiff/appellant Chris Gelb.
  • Carson T.H. Emmons (Counsel)
    Aspey, Watkins & Diesel, P.L.L.C.
    Counsel for plaintiff/appellant Chris Gelb.
  • Diana J. Elston (Counsel)
    Aspey, Watkins & Diesel, P.L.L.C.
    Counsel for plaintiff/appellant Chris Gelb.

Respondent Side

  • Sedona Casa Contenta Homeowners Association, Inc. (Appellee)
    Arizona non-profit homeowners’ association; defendant/appellee that raised the separation-of-powers challenge to the administrative process.
  • Department of Fire, Building and Life Safety (Appellee)
    State agency; nominal defendant/appellee that took no position on constitutionality and had discontinued processing such claims in January 2009.
  • Camila Alarcon (Counsel)
    Arizona Attorney General’s Office
    Assistant Attorney General (office of Terry Goddard) for defendant/appellee DFBLS.
  • Jason E. Smith (Counsel)
    Carpenter, Hazlewood, Delgado & Wood, PLC
    Counsel for defendant/appellee HOA. Carpenter Hazlewood (predecessor to CHDB Law) served as HOA counsel in this case.
  • Mark K. Sahl (Counsel)
    Carpenter, Hazlewood, Delgado & Wood, PLC
    Counsel for defendant/appellee HOA (Carpenter Hazlewood).
  • Carrie H. Smith (Counsel)
    Carpenter, Hazlewood, Delgado & Wood, PLC
    Counsel for defendant/appellee HOA (Carpenter Hazlewood).

Neutral Parties

  • Samuel A. Thumma (Judge)
    Authored the opinion; then a Superior Court judge designated to sit on the Court of Appeals under Ariz. Const. art. 6, sec. 3.
  • Lawrence F. Winthrop (Judge)
    Presiding Judge; concurred.
  • Patrick Irvine (Judge)
    Judge; concurred.

What happened

Chris Gelb began building a home in 2005 in a Sedona subdivision governed by the Sedona Casa Contenta Homeowners Association. As with many planned communities, her property was subject to the community’s covenants, conditions, and restrictions (CC&Rs), and the relationship between owner and association was governed by those documents and Arizona’s planned-community statutes in A.R.S. Title 33.

In 2007, after a dispute arose over Gelb’s landscaping, the HOA placed crushed rock in the common area in front of Gelb’s home without her permission. Gelb viewed the HOA’s conduct as a violation of the CC&Rs, setting up the underlying disagreement between the homeowner and her association.

Rather than file suit in court, Gelb used the administrative option the Legislature had created in 2006. Under A.R.S. sections 41-2198 to -2198.05, a homeowner or association could petition the Department of Fire, Building and Life Safety, which after reviewing the petition and response could refer the matter to the Office of Administrative Hearings for a hearing before an administrative law judge. Gelb filed her petition with the DFBLS in 2008, alleging the HOA had violated the CC&Rs, and the matter was referred to the OAH.

Following a hearing later in 2008, the ALJ issued a decision finding the HOA had not violated the CC&Rs. Under the statute, the ALJ’s decision was final and not subject to review or rehearing by the DFBLS; the only avenue of relief was review in the superior court. Gelb then filed a complaint in superior court seeking review of the ALJ’s decision.

In the superior court, the HOA moved to dismiss, arguing that the entire Administrative Process was unconstitutional because it violated the separation-of-powers provision of Article 3 of the Arizona Constitution. The superior court summarily denied that motion and, after further briefing and oral argument, found the ALJ’s decision was supported by the substantial weight of the evidence and denied Gelb relief. Gelb timely appealed.

On appeal, the Court of Appeals declined to decide the CC&R merits Gelb had raised. It found the constitutional issue was properly before it (rejecting Gelb’s cross-appeal and waiver arguments) and that the appeal could not fairly be decided on nonconstitutional grounds. Applying the four-factor Cactus Wren / J.W. Hancock test, the court held that assigning the DFBLS authority to adjudicate planned-community disputes, with no regulatory nexus or expertise, violated separation of powers.

The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction, leaving the parties free to pursue their CC&R dispute in court. The court noted the DFBLS had itself stopped processing such claims in January 2009 after other courts reached the same conclusion, and it emphasized that the Legislature remained free to grant a properly connected agency such authority in the future.

For Arizona homeowners and associations, Gelb v. DFBLS is a structural decision about where HOA disputes may be decided, not about who was right in any particular CC&R fight. By holding that the 2006 administrative-hearing process violated separation of powers, the court removed the inexpensive administrative forum homeowners and associations had used since 2006 and, at least temporarily, pushed CC&R and community-document disputes back into the courts. The court was careful to say the Legislature could constitutionally create such a forum, but only if it tied the adjudicating agency to a genuine regulatory framework for community associations, which it had not done for the DFBLS. The practical fallout is the reason the case still matters. The Legislature responded by revising Arizona’s HOA dispute-resolution scheme so that petitions are filed with, and hearings conducted by, the Office of Administrative Hearings, the neutral adjudicative body the constitutional analysis pointed toward. Anyone researching the current A.R.S. section 41-2198 framework should understand that today’s process exists in the shape it does partly because of Gelb, and that the case is a leading Arizona authority on the limits of delegating judicial-type power to executive agencies. This summary is educational and neutral; it is not legal advice, and homeowners or associations facing a dispute should confirm the current statutes and consult a qualified Arizona attorney.

Counsel note: Carpenter Hazlewood represented the homeowner, Chris Gelb, in the administrative dispute that led to this constitutional ruling.

Litigation record

Step 1 2005

Chris Gelb begins building a home in a Sedona subdivision governed by the Sedona Casa Contenta Homeowners Association.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2006

Arizona Legislature enacts the administrative dispute-resolution process for homeowner/association disputes (A.R.S. sections 41-2198 to -2198.05).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2007

After a landscaping dispute, the HOA places crushed rock in the common area in front of Gelb’s home without her permission.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2008

Gelb files a petition with the DFBLS alleging the HOA violated the CC&Rs; the matter is referred to the Office of Administrative Hearings.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2008

Following a hearing, the ALJ finds the HOA did not violate the CC&Rs; Gelb files a complaint in superior court for review.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2009-01

The DFBLS discontinues processing claims under the Administrative Process after other courts find it unconstitutional.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2010-10-28

Court of Appeals holds the Administrative Process unconstitutional under Article 3, vacates the superior court judgment, and directs dismissal without prejudice.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Gelb v. Department of Fire, Building & Life Safety about?

Homeowner Chris Gelb had a dispute with her HOA, the Sedona Casa Contenta Homeowners Association, over the community’s CC&Rs after the HOA placed crushed rock in the common area in front of her home. Instead of deciding who was right on the CC&Rs, the Court of Appeals addressed whether the state’s administrative-hearing process for HOA disputes was constitutional, and held that it was not.

What did the court actually decide?

The court held that the administrative process in A.R.S. sections 41-2198 to -2198.05, which let the Department of Fire, Building and Life Safety (DFBLS) route homeowner-versus-association disputes to an administrative law judge, violated the separation-of-powers guarantee in Article 3 of the Arizona Constitution. It vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction.

Why did the process violate separation of powers?

Using the four-factor Cactus Wren and J.W. Hancock test, the court found that adjudicating a private CC&R dispute is judicial in nature and that the DFBLS had no regulatory authority over, or special expertise in, planned communities. Because the agency’s adjudication was not tied to any legitimate regulatory purpose, it improperly encroached on the courts, even though superior-court review provided a partial check.

Does this mean HOA disputes can no longer be heard administratively in Arizona?

Not permanently. The court expressly said the Legislature could grant a properly connected agency authority to hear these disputes. In response to decisions like Gelb, the Legislature revised the framework so that HOA dispute petitions are handled through the Office of Administrative Hearings. Anyone dealing with a current dispute should check the present version of the statutes.

Who represented the parties, and was Carpenter Hazlewood involved?

Aspey, Watkins & Diesel represented homeowner Chris Gelb; the Arizona Attorney General’s Office represented the DFBLS; and Carpenter, Hazlewood, Delgado & Wood, PLC (a community-association firm, predecessor to CHDB Law) represented the Sedona Casa Contenta HOA, which raised the successful constitutional challenge.

Is Gelb v. DFBLS still good law, and is this legal advice?

Gelb is a published, precedential Arizona Court of Appeals decision and remains a leading authority on the limits of delegating judicial-type power to executive agencies. This page is a neutral educational summary, not legal advice; the statutory framework has since changed, so confirm the current law and consult a qualified Arizona attorney about any specific situation.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation225 Ariz. 515, 241 P.3d 512 (App. 2010)
Court / tribunalCourt of Appeals
Decision / key dateOctober 28, 2010
Judge / panelSamuel A. Thumma (author; designated Superior Court judge), Lawrence F. Winthrop (Presiding Judge), Patrick Irvine (Judge)
PartiesHomeowner Chris Gelb challenged an ALJ ruling in her CC&R dispute with the Sedona Casa Contenta HOA; the Court of Appeals instead struck the DFBLS administrative-hearing process on separation-of-powers grounds.
Governing law
Topics
cc-and-rscovenantsproceduremembership
Outcome / holding

The statutory administrative-hearing process in A.R.S. sections 41-2198 to -2198.05 — which empowered the Department of Fire, Building and Life Safety to adjudicate disputes between homeowners and planned-community/condominium associations — violates the separation-of-powers provision of Article 3 of the Arizona Constitution. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap7 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Chris Gelb, a homeowner in the Sedona Casa Contenta planned community, fell into a dispute with her homeowners’ association over how the community’s covenants, conditions, and restrictions (CC&Rs) applied to her property after the HOA placed crushed rock in the common area in front of her home. Rather than sue in court, Gelb used the administrative dispute-resolution process the Arizona Legislature created in 2006 (A.R.S. sections 41-2198 to -2198.05), under which the Department of Fire, Building and Life Safety (DFBLS) refers homeowner-versus-association disputes to an administrative law judge at the Office of Administrative Hearings. The ALJ found the HOA had not violated the CC&Rs, and the superior court, on administrative review, denied Gelb relief. On appeal, the Court of Appeals did not reach the merits of the CC&R dispute. Instead it took up a threshold constitutional question the HOA had raised: whether giving an executive-branch agency authority to adjudicate private disputes over community governing documents violates the separation-of-powers guarantee in Article 3 of the Arizona Constitution. Applying the four-factor test from Cactus Wren and J.W. Hancock, the court held that it does, because the DFBLS has no regulatory authority over, or special expertise in, planned communities, so its adjudication was an untethered exercise of judicial power that threatened the core functions of the courts. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction, leaving the parties to resolve their CC&R dispute in court. The decision helped prompt the Legislature to move HOA dispute hearings to the Office of Administrative Hearings in later legislation.

Key Issues & Findings

The court analyzed the Administrative Process under the four non-exclusive factors from Cactus Wren v. Arizona Department of Building & Fire Safety and J.W. Hancock Enterprises v. Arizona State Registrar of Contractors: (1) the essential nature of the power exercised; (2) the degree of control the agency exercises; (3) the Legislature’s objective in establishing the agency’s functions; and (4) the practical result of mingling roles. On factor one, adjudicating a dispute between two private parties over CC&Rs is judicial in nature. On factor two, the process did not coerce the judiciary because superior-court review supplies a critical judicial check, so that factor favored constitutionality. Factors three and four proved decisive: an agency may resolve private disputes only when that authority is auxiliary to and dependent upon a legitimate regulatory power. The DFBLS was created to oversee manufactured housing and fire safety and has no regulatory authority over planned communities, cannot review or modify an ALJ’s decision, and furnishes no special expertise. Unlike the mobile-home regulation upheld in Cactus Wren or the contractor-licensing discipline in J.W. Hancock, the DFBLS merely processed paperwork in an area with no nexus to its statutory purpose, threatening the core functions of the courts. Because the HOA overcame the strong presumption of constitutionality, the Administrative Process, as applied to planned communities, violated Article 3.

Why It Matters

For Arizona homeowners and associations, Gelb v. DFBLS is a structural decision about where HOA disputes may be decided, not about who was right in any particular CC&R fight. By holding that the 2006 administrative-hearing process violated separation of powers, the court removed the inexpensive administrative forum homeowners and associations had used since 2006 and, at least temporarily, pushed CC&R and community-document disputes back into the courts. The court was careful to say the Legislature could constitutionally create such a forum, but only if it tied the adjudicating agency to a genuine regulatory framework for community associations, which it had not done for the DFBLS.

The practical fallout is the reason the case still matters. The Legislature responded by revising Arizona’s HOA dispute-resolution scheme so that petitions are filed with, and hearings conducted by, the Office of Administrative Hearings, the neutral adjudicative body the constitutional analysis pointed toward. Anyone researching the current A.R.S. section 41-2198 framework should understand that today’s process exists in the shape it does partly because of Gelb, and that the case is a leading Arizona authority on the limits of delegating judicial-type power to executive agencies. This summary is educational and neutral; it is not legal advice, and homeowners or associations facing a dispute should confirm the current statutes and consult a qualified Arizona attorney.

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Garden Lakes Community Association, Inc. v. Madigan: HOA Court Case Guide

Posted on by

Arizona Court of Appeals · Solar Access & Architectural Review

Garden Lakes Community Association v. Madigan explains when an HOA’s solar-screening guidelines cross the line into an unlawful “effective prohibition” under A.R.S. § 33-439(A).

Arizona Court of Appeals | 204 Ariz. 238, 62 P.3d 983 (App. 2003) | Decided 2003-02-18

Read the source opinion FAQ

Scope note: This educational page summarizes Garden Lakes Community Association, Inc. v. Madigan, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page uses verified public opinion text or citation materials. No local ruling PDF is provided because no source PDF passed the file gate.

The takeaway

An HOA architectural restriction is void and unenforceable under A.R.S. § 33-439(A) if it “effectively prohibits” the installation or use of a solar energy device. “Effectively prohibits” does not require absolute impossibility; whether a restriction crosses that line is a fact-intensive, case-by-case inquiry that weighs the practical feasibility of any compliance alternative, its cost relative to community home values, the aesthetic burden imposed, the effect on the device’s solar efficiency, and the association’s own conduct. Because the Garden Lakes guidelines as applied to these homeowners were impractical and cost-prohibitive, they effectively prohibited solar use and were void.

Case Participants

Petitioner Side

  • Garden Lakes Community Association, Inc. (Plaintiff-Appellant)
    Nonprofit community association that sued to enforce its architectural guidelines against the homeowners’ rooftop solar panels.
  • Sun City Grand Community Association, Inc. (Amicus Curiae)
    Appeared as amicus curiae addressing the scope of A.R.S. § 33-439(A) for community associations; aligned with the appellant Association’s position.
  • Neal B. Thomas (Counsel)
    Thomas & Elardo, P.C.
    Counsel for Plaintiff-Appellant Garden Lakes Community Association, Inc.
  • Beth Mulcahy (Counsel)
    Mulcahy Law Firm, P.C.
    Counsel for Plaintiff-Appellant Garden Lakes Community Association, Inc.
  • Curtis S. Ekmark (Counsel)
    Ekmark & Ekmark, L.L.C.
    Counsel for amicus curiae Sun City Grand Community Association, Inc., aligned with the appellant Association.

Respondent Side

  • William E. Madigan (Defendant-Appellee)
    Homeowner who installed rooftop solar pool-heating panels; prevailed on the A.R.S. § 33-439(A) defense.
  • Joan M. Madigan (Defendant-Appellee)
    Homeowner and co-defendant with William E. Madigan.
  • Henry T. Speak (Defendant-Appellee)
    Homeowner who installed rooftop solar pool-heating panels; prevailed on the A.R.S. § 33-439(A) defense.
  • Lavonne M. Speak (Defendant-Appellee)
    Homeowner and co-defendant with Henry T. Speak.
  • Hyung S. Choi (Counsel)
    Law Office of Hyung S. Choi
    Counsel for Defendants-Appellees (the homeowners).
  • Gerald Pollock (Counsel)
    Law Offices of Gerald Pollock
    Counsel for Defendants-Appellees (the homeowners).

Neutral Parties

  • John C. Gemmill (Judge)
    Author of the Court of Appeals opinion.
  • Ann A. Scott Timmer (Judge)
    Presiding Judge on the Division One panel.
  • Noel Fidel (Judge)
    Judge on the Division One panel.

What happened

Garden Lakes is a planned community in Avondale, Arizona, whose lots are subject to recorded covenants, conditions, and restrictions (CC&Rs) administered by the Garden Lakes Community Association through an Architectural Review Committee. The Association’s architectural guidelines addressed solar devices, generally requiring that any panels be integrated into the roof design and screened so they would not be visible or detract from the neighborhood’s appearance.

Two homeowner couples — William and Joan Madigan and Henry and Lavonne Speak — installed solar panels on their roofs to heat their swimming pools. They did so without first obtaining Architectural Review Committee approval, and the installed panels were visible rather than screened or flush-mounted as the guidelines contemplated.

The Association treated the visible panels as a violation of its recorded guidelines and demanded that the homeowners bring the installations into compliance. When the homeowners did not remove or conceal the panels, the Association filed suit in Maricopa County Superior Court, seeking an injunction to compel compliance and damages for breach of the architectural restrictions.

The homeowners raised A.R.S. § 33-439(A) as a defense. That statute voids any covenant, restriction, or condition affecting real property that “effectively prohibits” the installation or use of a solar energy device (a term the statute ties to definitions in A.R.S. § 44-1761 and § 43-1083). The homeowners argued that the only ways to comply with the Association’s guidelines were impractical and prohibitively expensive, so the guidelines effectively prohibited their solar use.

After a bench trial, the superior court agreed with the homeowners. It found that the alternatives the Association offered — building a patio cover that would cost more than $5,000 and would violate the municipality’s setback requirements, or constructing an untested roof-line screening wall — were impractical and cost-prohibitive. On those findings it concluded the guidelines effectively prohibited the homeowners’ solar use and were void under § 33-439(A), and it entered judgment for the homeowners.

The Association appealed to Division One of the Arizona Court of Appeals, arguing chiefly that “effectively prohibits” should mean “absolutely precludes” and that the trial court’s findings were inadequate. The court of appeals disagreed. Reviewing the factual findings for clear error under Ariz. R. Civ. P. 52(a), and construing the statute functionally, the panel held that a restriction effectively prohibits solar use when compliance is impractical, cost-prohibitive, or destructive of the device’s efficiency, judged case-by-case against factors including cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

The court affirmed the judgment for the homeowners and held the guidelines void as applied. Because the dispute arose out of contract (the recorded CC&Rs), the court also addressed attorneys’ fees under A.R.S. § 12-341.01 and awarded the prevailing homeowners their reasonable fees and costs on appeal. Sun City Grand Community Association appeared as amicus curiae addressing the statute’s scope for associations.

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona’s solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community’s demanded alternative is too expensive, too impractical, or too damaging to the panels’ efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar. For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device’s purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC’s objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys’ fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

Litigation record

Step 1 c. 1999

The Madigans and the Speaks install rooftop solar panels to heat their swimming pools in the Garden Lakes subdivision without first obtaining Architectural Review Committee approval. (Date approximate; reconstructed from the record.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 c. 1999-2000

The Association demands that the homeowners bring the panels into compliance and, when they decline to remove or screen them, files suit in Maricopa County Superior Court seeking an injunction and damages. (Date approximate.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2000

After a bench trial, the superior court enters judgment for the homeowners, finding the guidelines effectively prohibit solar use under A.R.S. § 33-439(A); the Association appeals (appellate docket 1 CA-CV 00-0570). (Year inferred from docket number.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2003-02-18

Division One of the Arizona Court of Appeals issues its published opinion (authored by Judge Gemmill), affirming judgment for the homeowners and awarding the homeowners their attorneys’ fees on appeal.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Garden Lakes Community Association v. Madigan about?

Two homeowner couples in the Garden Lakes subdivision in Avondale installed rooftop solar panels to heat their pools without Architectural Review Committee approval. The Association’s guidelines required solar devices to be integrated and screened, and the Association sued to enforce them. The homeowners defended under Arizona’s solar-access statute, A.R.S. § 33-439(A). The trial court and the Court of Appeals both ruled for the homeowners, holding the guidelines void as applied.

What does it mean for an HOA restriction to “effectively prohibit” a solar device?

The Court of Appeals held that “effectively prohibits” in A.R.S. § 33-439(A) does not require the restriction to make solar use literally impossible. A rule can effectively prohibit a solar device when complying with it is so impractical, expensive, or damaging to the device’s efficiency that it deprives the homeowner of the device’s realistic benefit. Courts decide this case-by-case, weighing feasibility, cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

Which Arizona statute did the case interpret?

The central statute is A.R.S. § 33-439(A), which declares void and unenforceable any covenant, restriction, or condition affecting real property that effectively prohibits the installation or use of a solar energy device. The court also referenced statutory definitions of a solar energy device (A.R.S. § 44-1761 and § 43-1083), applied the clearly-erroneous review standard of Ariz. R. Civ. P. 52(a), and addressed attorneys’ fees under A.R.S. § 12-341.01.

Does this mean an HOA can never regulate solar panels?

No. The decision does not abolish architectural review of solar installations. Associations may still adopt reasonable aesthetic and design standards for solar devices. The limit is that a guideline cannot be enforced when, as applied, it effectively prohibits solar use — for example, by demanding a compliance alternative that is cost-prohibitive, infeasible, or destructive of the panels’ efficiency. Reasonable regulation is allowed; effective prohibition is not.

Who won, and did the homeowners recover attorneys’ fees?

The homeowners won. The Court of Appeals affirmed the superior court’s judgment in their favor and held the Association’s guidelines void as applied. Because the dispute arose from the recorded CC&Rs (a contract), the court awarded the prevailing homeowners their reasonable attorneys’ fees and costs on appeal under A.R.S. § 12-341.01.

Is Garden Lakes v. Madigan still good law in Arizona?

Yes. It is a published, precedential opinion of the Arizona Court of Appeals, Division One (204 Ariz. 238, 62 P.3d 983 (App. 2003)), and it remains a leading authority on how A.R.S. § 33-439(A) limits HOA architectural control over residential solar devices. This page is an educational summary, not legal advice; consult a qualified Arizona attorney about your specific situation.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation204 Ariz. 238, 62 P.3d 983 (App. 2003)
Court / tribunalCourt of Appeals
Decision / key dateFebruary 18, 2003
Judge / panelJohn C. Gemmill (opinion author), Ann A. Scott Timmer (Presiding Judge), Noel Fidel
PartiesGarden Lakes Community Association sued member homeowners (the Madigans and the Speaks) to enforce its architectural guidelines against their rooftop solar pool-heating panels; the homeowners prevailed under Arizona’s solar-access statute, A.R.S. § 33-439(A).
Governing law
Topics
solararchitectural-reviewcovenantscc-and-rsattorneys-fees
Outcome / holding

An HOA architectural restriction is void and unenforceable under A.R.S. § 33-439(A) if it “effectively prohibits” the installation or use of a solar energy device. “Effectively prohibits” does not require absolute impossibility; whether a restriction crosses that line is a fact-intensive, case-by-case inquiry that weighs the practical feasibility of any compliance alternative, its cost relative to community home values, the aesthetic burden imposed, the effect on the device’s solar efficiency, and the association’s own conduct. Because the Garden Lakes guidelines as applied to these homeowners were impractical and cost-prohibitive, they effectively prohibited solar use and were void.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap4 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Garden Lakes Community Association, Inc. v. Madigan arose in the Garden Lakes subdivision of Avondale, Arizona, after two homeowner couples — the Madigans and the Speaks — installed rooftop solar panels to heat their swimming pools without first obtaining approval from the Association’s Architectural Review Committee. The Association’s recorded architectural guidelines required that solar devices be integrated into the roof design and screened from view. When the visible panels went up, the Association sued for an injunction and damages, alleging the homeowners had breached the recorded guidelines. The homeowners defended under A.R.S. § 33-439(A), Arizona’s solar-access statute, which declares void and unenforceable any covenant, restriction, or condition that “effectively prohibits” the installation or use of a solar energy device.

After a bench trial, the superior court ruled for the homeowners. It found that the Association’s proposed compliance alternatives — a patio cover costing more than $5,000 that would also violate municipal setback rules, and an untested roof-line screening wall — were impractical and cost-prohibitive, and therefore effectively prohibited the homeowners’ solar use. Division One of the Court of Appeals affirmed. Writing for the panel, Judge Gemmill held that “effectively prohibits” does not require absolute impossibility; courts must assess practical feasibility case-by-case, weighing cost relative to community home values, aesthetic demands, effects on solar efficiency, and the association’s own conduct. The decision remains a leading published Arizona authority protecting residential solar installations from restrictive HOA architectural rules.

Key Issues & Findings

The court interpreted the phrase “effectively prohibits” in A.R.S. § 33-439(A). The Association urged a narrow reading under which only a restriction making solar use literally impossible would be void. The court rejected that construction, reasoning that the legislature’s choice of the word “effectively” signals a functional, practical inquiry rather than a test of absolute impossibility. A restriction can effectively prohibit a solar device when compliance is so impractical, costly, or inefficient that it deprives the homeowner of the device’s realistic benefit. Whether that line is crossed is a fact-intensive, case-by-case question, and the court identified relevant considerations: the practical feasibility of any alternative, its cost relative to the value of homes in the community, the aesthetic burden imposed, the effect on the device’s solar efficiency, and the association’s own conduct. Applying the trial court’s findings — reviewed for clear error under Ariz. R. Civ. P. 52(a) — the panel concluded that the guidelines as applied to these homeowners effectively prohibited solar use and were therefore void and unenforceable, and it affirmed the judgment for the homeowners.

Why It Matters

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona’s solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community’s demanded alternative is too expensive, too impractical, or too damaging to the panels’ efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar.

For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device’s purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC’s objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys’ fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

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Heritage Heights Home Owners Ass’n v. Esser: HOA Court Case Guide

Posted on by

Arizona HOA Case Explainer

How Arizona courts enforce recorded CC&Rs by injunction against a knowing violator — and when a declaration’s attorneys’-fee clause compels a fee award to a prevailing association.

Arizona Court of Appeals | 115 Ariz. 330, 565 P.2d 207 (App. 1977) | Decided 1977-05-24

Read the source opinion FAQ

Scope note: This educational page summarizes Heritage Heights Home Owners Ass’n v. Esser, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

The takeaway

A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys’ fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal.

Case Participants

Petitioner Side

  • Heritage Heights Home Owners Association (Appellant (Plaintiff))
    Arizona corporation; mandatory homeowners association formed by the subdivision developer in 1970. Enforcing party seeking removal of the fence and its fees and costs.
  • Jones Osborn II (Counsel)
    Martori, Meyer, Hendricks & Victor, P.A.
    Phoenix counsel of record for the appellant Heritage Heights Home Owners Association.

Respondent Side

  • Fred R. Esser (Appellee (Defendant))
    Lot owner who built the wooden “grapestake” fence after being told it violated the covenants; appeared in propria persona (self-represented).
  • Margaret J. Esser (Appellee (Defendant))
    Fred Esser’s wife; named as a co-defendant/appellee.
  • Fred R. Esser (Counsel)
    Appeared in propria persona (pro se); represented himself and Margaret J. Esser as appellees.

Neutral Parties

  • Levi Ray Haire (Judge)
    Authored the opinion for the Court of Appeals.
  • Nelson (Judge)
    Presiding Judge; concurred in the opinion.
  • Francis J. Donofrio (Judge)
    Judge; concurred in the opinion.

What happened

Heritage Heights Home Owners Association was created by the developer of a residential subdivision in 1970. The development plan made every resident an automatic member of the Association, and membership rights, privileges, and land-use restrictions were embodied as restrictive covenants imposed on every conveyance of a lot in the subdivision.

From 1970 through 1972, while lots were still being sold, the Association remained under the developer’s control and generally did not pursue violations of the deed restrictions, which were usually minor. In 1972 the individual homeowners took control of the Association and began a program of enforcement aimed at eliminating existing violations and preventing new ones.

As part of that program, the Association sent newsletters in March, April, and July of 1973 reminding residents of the restrictions, and it addressed existing violations through negotiation and, where necessary, litigation. The parties stipulated that the Association granted permanent variances for fences that substantially met the purpose of the restrictions (such as brick-and-masonry or wrought-iron-and-block fences) and that, for non-conforming wood fences built before enforcement began, its usual policy was to allow a five-year period to remove them.

In October 1973, after the three newsletters had gone out, Fred Esser began constructing a wooden “grapestake” fence. On October 15, 1973, a member of the Board of Directors saw the construction, told Esser the fence would violate the deed restrictions, and asked him to stop. Esser refused and completed the fence.

The Association sued for an injunction. After preliminary proceedings — including an order requiring the Association to join additional defendants and a later extension of time to do so — the case was tried on stipulated facts. The trial court ordered the Association to grant Esser a five-year variance to remove the fence within 30 days or face dismissal of the suit with prejudice, and it denied the Association any costs or attorneys’ fees.

On appeal, the Arizona Court of Appeals reversed both rulings. It held there was no record support for the five-year postponement and that Esser, who built with actual knowledge of the violation, was reasonably distinguished from good-faith owners; once the restriction was valid, no equity justified delaying removal. It also held that the declaration’s express fee provision contractually required an award of fees and costs to the prevailing Association, including fees on appeal, and it rejected Esser’s Rule 6(b) jurisdictional argument. The court remanded for entry of an injunction ordering immediate removal of the fence and for assessment of costs and attorneys’ fees.

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis. The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

Litigation record

Step 1 1970

Developer forms Heritage Heights Home Owners Association; membership and restrictive covenants are imposed on every conveyance in the subdivision.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1970-1972

Association remains under the developer’s control while lots are sold; minor deed-restriction violations are generally not pursued.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1972

Individual homeowners take control of the Association and begin a program of enforcing the deed restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 March 1973

Association sends a newsletter reminding residents of the deed restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 April 1973

Association sends a second reminder newsletter.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 July 1973

Association sends a third reminder newsletter.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 October 1973

Fred Esser begins building a wooden “grapestake” fence, after the three newsletters had been sent.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 October 15, 1973

A board member notifies Esser that the fence violates the deed restrictions and asks him to stop; Esser refuses and completes the fence.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 9 1973-1976

Association files suit for an injunction; after preliminary proceedings, the case is tried on stipulations. The trial court orders a five-year variance and denies costs and attorneys’ fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 10 May 24, 1977

Arizona Court of Appeals reverses both rulings and remands for an injunction requiring immediate removal and for assessment of costs and attorneys’ fees, including fees on appeal.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Heritage Heights Home Owners Ass’n v. Esser about?

A mandatory homeowners association sued a lot owner, Fred Esser, to enforce a recorded subdivision deed restriction that barred wooden “grapestake” fences. Esser built the fence after a board member warned him it violated the covenants. The Arizona Court of Appeals held the restriction had to be enforced by injunction, reversed a trial-court order giving Esser five years to remove the fence, and held the association was entitled to its attorneys’ fees and costs under the declaration.

Why did the Court of Appeals reject the five-year variance the trial court ordered?

The court found nothing in the stipulated record that supported a five-year postponement of removal. The association’s informal policy of allowing five years applied only to owners who built fences in good faith before enforcement began, and that policy was not part of the stipulations. Even if it had been, the court said it reasonably distinguished good-faith owners from Esser, who built with actual knowledge that the fence violated the covenants and would be enforced. Once the restriction was valid, the court saw no equitable reason to delay removal.

Did the homeowner have to pay the association’s attorneys’ fees?

Yes. The recorded declaration expressly provided that an owner against whom a successful enforcement action was brought would pay the prevailing enforcing party’s attorneys’ fees and costs. Because Esser accepted the deed, he was contractually bound by that provision. The court held that contracts for attorneys’ fees are enforced according to their terms, so the trial court was obligated to award the association its fees and costs, including fees on appeal.

Does it matter that the owner built the fence after being warned?

It was central to the outcome. Esser began and completed the fence after receiving three association newsletters about the restrictions and after a board member personally told him the fence would violate the covenants and asked him to stop. The court treated this actual knowledge as the key fact distinguishing him from owners who built in good faith before enforcement, and it concluded he built “at his own risk.”

Is Heritage Heights v. Esser still good law in Arizona?

It remains a published, precedential Arizona Court of Appeals decision that is still cited for enforcing recorded CC&Rs by injunction and for honoring a declaration’s contractual attorneys’-fee provision. However, it was decided in 1977, before the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and modern fee statutes such as A.R.S. section 12-341.01. This page is general educational information, not legal advice; how it applies to a specific dispute should be confirmed with current statutes and a qualified attorney.

What is a “grapestake” fence and why was it a problem?

A grapestake fence is a fence built from rows of narrow, roughly split wooden stakes. In this subdivision, the recorded deed restrictions barred wooden fences of that type. The association had granted permanent variances only for fences it felt substantially met the purpose of the restrictions — such as brick-and-masonry or wrought-iron-and-block fences — so Esser’s wooden grapestake fence did not qualify and had to be removed.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation115 Ariz. 330, 565 P.2d 207 (App. 1977)
Court / tribunalCourt of Appeals
Decision / key dateMay 24, 1977
Judge / panelLevi Ray Haire (author), Nelson (Presiding Judge), Francis J. Donofrio
PartiesA mandatory homeowners association sued a lot owner to enforce a recorded subdivision deed restriction barring a wooden “grapestake” fence and to recover its attorneys’ fees and costs.
Governing law
  • Ariz. R. Civ. P. 6(b)
Topics
cc-and-rscovenantsattorneys-feesarchitectural-reviewprocedure
Outcome / holding

A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys’ fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap10 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Heritage Heights Home Owners Ass’n v. Esser addresses how Arizona courts enforce recorded subdivision deed restrictions and how they treat a declaration’s attorneys’-fee provision. Heritage Heights was a mandatory homeowners association created by a developer in 1970; membership and the accompanying covenants were imposed on every conveyance in the subdivision. After homeowners took control from the developer in 1972, the Association began enforcing the restrictions and sent newsletters in March, April, and July 1973 reminding residents of the rules. In October 1973, Fred Esser began building a wooden “grapestake” fence; a board member told him it violated the covenants and asked him to stop, but he finished it. The Association sued for an injunction. Trying the case on stipulated facts, the trial court ordered the Association to grant Esser a five-year variance to remove the fence (or have the suit dismissed with prejudice) and refused to award the Association its costs and attorneys’ fees. The Court of Appeals reversed both rulings. It found nothing in the record supporting a five-year postponement, and it distinguished Esser — who built with actual knowledge of the violation — from owners who had built fences in good faith before enforcement began. Once the restriction was valid and enforceable, no equity justified delay. Because the recorded declaration expressly required a violating owner to pay the prevailing enforcing party’s fees and costs, the trial court was contractually obligated to award them, including fees on appeal. The court also rejected Esser’s jurisdictional argument under Rule 6(b).

Key Issues & Findings

The court reasoned that a grantee who accepts a deed containing restrictions assents to them and is bound as if he had signed them, so the covenants and the fee provision were enforceable against Esser. Enforcement is by injunction, and while a trial court may shape an equitable remedy, nothing in the stipulated record justified a five-year delay in removing the fence. The Association’s informal policy of allowing five years to owners who had built in good faith before enforcement began was not in the stipulations and, in any event, reasonably distinguished those owners from Esser, who built with full knowledge that his fence violated the covenants and would be enforced. Allowing knowing violators five years would defeat the development plan to the detriment of all owners, including Esser. Because the declaration expressly required a violating owner to pay the prevailing enforcing party’s attorneys’ fees and costs, the court was contractually obliged to award them, and contracts for attorneys’ fees are enforced according to their terms. Rule 6(b) permitted the earlier extension of time without notice, so appellate jurisdiction was proper.

Why It Matters

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis.

The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

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Turtle Rock III Homeowners Association v. Fisher: HOA Court Case Guide

Posted on by

Assessments & Fines | A.R.S. § 33-1803(B) | 1 CA-CV 16-0455 (depublished)

Division One affirmed an injunction to fix property violations but reversed the HOA’s daily fines and attorneys’ fees, holding an association must promulgate its fine schedule before imposing fines and prove they are reasonable. The Arizona Supreme Court later depublished the opinion.

Arizona Court of Appeals | 1 CA-CV 16-0455 (243 Ariz. 294, 406 P.3d 824 (App. 2017), later depublished) | Decided 2017-10-26 | Nonprecedential / citation-limited

Download the ruling PDF FAQ

Scope note: This educational page summarizes Turtle Rock III Homeowners Association v. Fisher, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Citation caveat: This opinion was later depublished. Treat it as historical, nonprecedential guidance rather than binding Arizona precedent.

The takeaway

Even where an HOA has authority under state statute and its CC&Rs to fine members, it must promulgate a schedule of fines before imposing them and must prove the fines are reasonable. Absent competent record evidence of a timely promulgated fee schedule (and proof of resulting damages), ad hoc daily monetary penalties are per se unreasonable under A.R.S. § 33-1803(B) and Villas at Hidden Lakes Condos Ass’n v. Geupel Constr. Co. The HOA, as the plaintiff, bore the burden of proof; the best-evidence rule (Ariz. R. Evid. 1002) required it to produce the writing itself, and the trial court’s reduction of the fines by 58% could not cure the missing schedule. The Court of Appeals affirmed the injunction requiring the property maintenance and repairs (Fisher’s interior objection was waived and the missing transcript was presumed to support the ruling) but reversed the $3,850 penalty award and the associated attorneys’ fee award, and awarded neither side fees on appeal. The Arizona Supreme Court later ordered the opinion depublished, so it is persuasive only and is not binding precedent.

Case Participants

Petitioner Side

  • Lynne A. Fisher (Party)
    Defendant/Appellant. Homeowner cited for exterior disrepair and interior clutter; did not appear at the hearing, but her counsel appeared and challenged the fines. She prevailed on the penalties and fees but lost on the injunction.
  • James Roger Wood (Counsel)
    The Law Offices of J. Roger Wood, PLLC
    Counsel for Defendant/Appellant Fisher (Tempe).
  • Erin S. Iungerich (Counsel)
    The Law Offices of J. Roger Wood, PLLC
    Counsel for Defendant/Appellant Fisher (Tempe).

Respondent Side

  • Turtle Rock III Homeowners Association (Party)
    Plaintiff/Appellee. Planned-community HOA that sued to enforce the CC&Rs, obtain an injunction, and collect $25-per-day fines; prevailed on the injunction but lost the penalty and fee awards on appeal.
  • Clint G. Goodman (Counsel)
    Goodman Law Group, LLP
    Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa).
  • Ashely N. Moscarello (Counsel)
    Goodman Law Group, LLP
    Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa).
  • Maura A. Abernathy (Counsel)
    Goodman Law Group, LLP
    Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa).

Neutral Parties

  • Jon W. Thompson (Judge)
    Arizona Court of Appeals, Division One
    Authored the Opinion of the Court.
  • Kent E. Cattani (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; joined the opinion.
  • Paul J. McMurdie (Judge)
    Arizona Court of Appeals, Division One
    Joined the opinion.
  • David M. Talamante (Judge)
    Maricopa County Superior Court
    Trial judge (No. CV2015-095897) who entered the injunction, penalties, fees, and costs later reviewed on appeal.

What happened

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.

Litigation record

Step 1 2014-01

The HOA began sending Fisher violation notices and levying $25-per-day fines for maintenance violations under the CC&Rs.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2015-09-16

The HOA’s attorney wrote to Fisher; the trial court later counted only penalties that accrued after this date.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2015-11

The HOA filed its complaint in Maricopa County Superior Court (No. CV2015-095897) alleging breach of the CC&Rs and seeking an injunction and penalties.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2016

The superior court (Hon. David M. Talamante) held an evidentiary hearing and entered judgment for the HOA: the injunction, $3,850 in penalties (reduced sua sponte from $9,165.25), $10,839.70 in attorneys’ fees, and $474 in costs. Fisher appealed.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2017-10-26

The Arizona Court of Appeals, Division One, filed its opinion (No. 1 CA-CV 16-0455), affirming the injunction but reversing the monetary penalties and the attorneys’ fee award.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2018

The Arizona Supreme Court ordered the opinion (originally published at 243 Ariz. 294, 406 P.3d 824) depublished, so it is persuasive only and is not binding precedent.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/turtle-rock-iii-hoa-v-fisher/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2026-07-01

Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2026-07-01_001_opinion.pdf

FAQ

Can an Arizona HOA fine a homeowner without a written fine schedule?

Under this opinion, no—at least not enforceably. Applying A.R.S. § 33-1803(B) and Villas at Hidden Lakes, the court held that even where an HOA has authority to fine, it must promulgate a schedule of fines before imposing them, and ad hoc fines are per se unreasonable. Because Turtle Rock III never put its fine schedule into evidence, the court reversed the $3,850 penalty award.

Who has the burden to prove a fine is reasonable—the HOA or the homeowner?

The HOA. As the plaintiff bringing a breach-of-contract action, the association had the burden to prove the elements of its claim, including that a fine schedule existed and that the fines were reasonable. The court held Fisher was not required to introduce evidence disproving the fines, and the best-evidence rule (Ariz. R. Evid. 1002) meant the HOA generally had to produce the actual schedule, not just testimony about it.

Why was the maintenance injunction affirmed but the fines reversed?

These were separate issues. The injunction was affirmed because Fisher’s objection to the interior repairs was raised for the first time on appeal (and thus waived), she offered no evidence below, and the missing hearing transcript was presumed to support the trial court. The fines were reversed on the legal ground that the HOA never proved a promulgated, reasonable fine schedule.

Did the trial court’s decision to cut the fines make them reasonable?

No. The trial court reduced the requested $9,165.25 in penalties to $3,850 on its own motion—a roughly 58% cut. The Court of Appeals said that slashing the fines did not establish that the fine scheme was reasonable; if anything, it confirmed the overreach. A stipulated damages amount fixed in advance of a breach can operate as an unenforceable penalty.

Why were the HOA’s attorneys’ fees reversed too?

The attorneys’ fee award below was tied to the HOA’s success on the penalties. When the Court of Appeals reversed the $3,850 penalty award, the associated attorneys’ fee award was reversed with it. On appeal, the court awarded neither party its fees under A.R.S. § 12-341.01 because neither side was wholly successful.

Is Turtle Rock III v. Fisher binding precedent in Arizona?

No. Although it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), the Arizona Supreme Court later ordered the opinion depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it is persuasive only. The rule it applied, however, comes from Villas at Hidden Lakes, which remains good law.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 16-0455 (243 Ariz. 294, 406 P.3d 824 (App. 2017), later depublished)
Court / tribunalCourt of Appeals
Decision / key dateOctober 26, 2017
Judge / panelJon W. Thompson (author), Kent E. Cattani (Presiding Judge), Paul J. McMurdie
PartiesA planned-community homeowners association (Turtle Rock III) sued homeowner Lynne A. Fisher for breaching the CC&Rs and sought an injunction plus accrued daily fines; the Court of Appeals affirmed the maintenance injunction but reversed the monetary penalties and attorneys’ fees because the HOA never put its fine schedule into evidence.
Governing law
Topics
assessmentscc-and-rsattorneys-feescovenantsprocedure
Outcome / holding

Even where an HOA has authority under state statute and its CC&Rs to fine members, it must promulgate a schedule of fines before imposing them and must prove the fines are reasonable. Absent competent record evidence of a timely promulgated fee schedule (and proof of resulting damages), ad hoc daily monetary penalties are per se unreasonable under A.R.S. § 33-1803(B) and Villas at Hidden Lakes Condos Ass’n v. Geupel Constr. Co. The HOA, as the plaintiff, bore the burden of proof; the best-evidence rule (Ariz. R. Evid. 1002) required it to produce the writing itself, and the trial court’s reduction of the fines by 58% could not cure the missing schedule. The Court of Appeals affirmed the injunction requiring the property maintenance and repairs (Fisher’s interior objection was waived and the missing transcript was presumed to support the ruling) but reversed the $3,850 penalty award and the associated attorneys’ fee award, and awarded neither side fees on appeal. The Arizona Supreme Court later ordered the opinion depublished, so it is persuasive only and is not binding precedent.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap6 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Turtle Rock III Homeowners Association v. Fisher arose from a Maricopa County dispute between a planned-community HOA and homeowner Lynne A. Fisher. The recorded CC&Rs required owners to keep their property in a “clean and attractive condition” and allowed the 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 roughly ninety notices about exterior disrepair and interior clutter that blocked blinds visible from outside, and it levied fines of $25 per day. In November 2015 the HOA sued for breach of the CC&Rs and an injunction. At an evidentiary hearing that Fisher’s counsel attended but Fisher did not, the HOA presented one witness and five exhibits but never introduced its written fine schedule; Fisher offered no evidence. The trial court entered the injunction, reduced the requested $9,165.25 in penalties to $3,850 on its own motion, and awarded the HOA $10,839.70 in attorneys’ fees plus $474 in costs. On appeal, Division One affirmed the injunction (Fisher’s interior-repair argument was waived, and the missing hearing transcript was presumed to support the ruling) but reversed the penalties. Applying A.R.S. § 33-1803(B) and Villas at Hidden Lakes, the court held that an HOA must promulgate its fine schedule before imposing fines and prove the fines are reasonable; because no schedule was in evidence, the daily fines were per se unreasonable, and the attorneys’ fee award fell with them. The Arizona Supreme Court later depublished the opinion, so it is persuasive only.

Key Issues & Findings

The panel reviewed the injunction for abuse of discretion and questions of law, including the interpretation of deed restrictions, de novo. It affirmed the injunction because Fisher’s objection to the interior repairs was raised for the first time on appeal and therefore waived (Odom v. Farmers Ins. Co.), she had filed no pretrial statement and offered no evidence below, and the trial court noted she had not objected to the enumerated maintenance items; the court also presumed the missing hearing transcript would support the ruling (Myrick v. Maloney). On the penalties, the court applied A.R.S. § 33-1803(B), which permits an HOA board, after notice and an opportunity to be heard, to impose only reasonable monetary penalties. Villas at Hidden Lakes was dispositive: even where an HOA has authority to levy fines, it must promulgate the fine schedule before imposing the fines, and a failure to prove promulgation is fatal because ad hoc fines are per se unreasonable. No fee schedule was introduced into evidence; a bare assertion in the HOA’s brief that a fine policy was provided after the hearing was uncorroborated, and the trial court’s reference to the witness’s testimony did not establish that a schedule existed. As the plaintiff, the HOA bore the burden of proving the elements of its breach claim (Clark v. Compania Ganadera), and the best-evidence rule (Ariz. R. Evid. 1002) required production of the writing itself rather than oral testimony about its terms. There was also no record support that a $25-per-day fine was reasonable; a stipulated damages provision fixed in advance of a breach operates as an unenforceable penalty (Larson-Hegstrom), and the trial court’s 58% reduction of the fines confirmed rather than cured the overreach. Even if a schedule had existed, the HOA still had to prove its damages. Because the penalties were reversed, the attorneys’ fee award below fell with them, and neither party was awarded fees on appeal because neither was wholly successful.

Why It Matters

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, LLC v. Meienberg: HOA Court Case Guide

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Arizona Court of Appeals – CC&R Enforcement

When a bound owner completes an offending structure after being warned it violates the CC&Rs, he is an intentional violator who cannot use relative hardship to escape a mandatory injunction.

Arizona Court of Appeals | 215 Ariz. 44, 156 P.3d 1149 (App. 2007) | Decided 2007-04-30

Download the ruling PDF FAQ

Scope note: This educational page summarizes Flying Diamond Airpark, LLC v. Meienberg, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

The takeaway

Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive notice of a recorded restrictive covenant, is warned before completing the violation that his structure will breach the covenant, and nonetheless finishes it, is an ‘intentional’ violator who cannot invoke the equitable doctrine of relative hardships (or reopen the record under Rule 59(b) for additional hardship evidence) to defeat enforcement. The court also rejected the owner’s equitable-estoppel defense because the association’s voluntary architectural advisory committee had no authority to approve or disapprove plans, and it granted the association its appellate attorney fees under a CC&R fee-shifting provision.

Case Participants

Petitioner Side

  • Jeffrey A. Meienberg (Defendant/Appellant)
    Unmarried man and bound association member who built the over-height aircraft hangar; conceded the hangar exceeded the limit by about 8.75 to 10.75 inches.
  • Ethan Steele (Counsel)
    Law Office of Ethan Steele, P.C.
    Tucson attorney for Defendant/Appellant Jeffrey A. Meienberg.

Respondent Side

  • Flying Diamond Airpark, LLC (Plaintiff/Appellee)
    Arizona limited liability company and non-profit corporation; the mandatory-membership property owners’ association that sued to enforce the 22-foot CC&R height restriction. True caption reads ‘Flying Diamond Airpark’ (some sources misspell it ‘Airpack’).
  • John A. Baade (Counsel)
    Tucson attorney for Plaintiff/Appellee Flying Diamond Airpark, LLC; no firm listed in the opinion caption.
  • Tanis A. Duncan (Counsel)
    Tucson attorney for Plaintiff/Appellee Flying Diamond Airpark, LLC; no firm listed in the opinion caption.

Neutral Parties

  • Joseph W. Howard (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge; authored the opinion.
  • John Pelander (Judge)
    Arizona Court of Appeals, Division Two
    Chief Judge; concurred.
  • Garye L. Vasquez (Judge)
    Arizona Court of Appeals, Division Two
    Judge; concurred. Name appears in the opinion as ‘Garye L. Vasquez.’
  • Hon. Charles V. Harrington (Judge)
    Pima County Superior Court
    Trial judge who issued the mandatory injunction and fee award that were affirmed on appeal.

What happened

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.

Litigation record

Step 1 2004

Meienberg orders prefabricated parts for an aircraft hangar and, before construction, shows the plans to Larry Bramhall of a voluntary architectural advisory committee; the plans omit the hangar’s total height and the roof-vent dimensions, and the vents are not discussed.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2004

Meienberg begins constructing the hangar on his Flying Diamond parcel.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2004

After framing begins, Bramhall sees the steel frame and the roof vents on the ground and warns Meienberg that, counting the vents, the hangar will exceed the 22-foot limit; Meienberg disputes that vents count and completes construction.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2004

Flying Diamond Airpark files suit in Pima County Superior Court (Cause No. C-20045803) seeking an injunction to bring the hangar into compliance.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2006

After an evidentiary hearing, the trial court (Hon. Charles V. Harrington) finds the violation intentional, issues a mandatory injunction ordering the hangar lowered, and awards Flying Diamond attorney fees under the CC&Rs.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2006

The trial court denies Meienberg’s Rule 59(b) motion to reopen the case for additional evidence about the hardship of compliance; Meienberg appeals to the Arizona Court of Appeals, Division Two (2 CA-CV 2006-0092).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2007-04-30

The Court of Appeals affirms the injunction, the denial of the Rule 59(b) motion, and the fee award, and grants Flying Diamond its appellate attorney fees under the CC&Rs (subject to Rule 21(c)).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/diamond-airpark-v-meienberg/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2026-07-01

Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2026-07-01_001_opinion.pdf

FAQ

What was Flying Diamond Airpark, LLC v. Meienberg about?

It was a covenant-enforcement dispute in an Arizona common-interest community. The recorded CC&Rs for Flying Diamond Airpark barred ‘structures of more than 22 foot height.’ Member Jeffrey Meienberg built an aircraft hangar whose three roof vents pushed it roughly 8.75 to 10.75 inches over the limit. The association sued, and the trial court ordered him to lower the hangar and pay attorney fees. The Court of Appeals affirmed on April 30, 2007.

What is the ‘relative hardships’ doctrine, and why couldn’t Meienberg use it?

When a court decides whether to enjoin a covenant violation, it can weigh equitable factors, including the relative hardship an injunction imposes on the violator versus the benefit to the neighbors. But that balancing is a matter of grace, not right, and it is not available to protect an intentional wrongdoer. Because Meienberg completed the hangar after being warned it would violate the height restriction, the court treated him as an intentional violator and refused to weigh his hardship at all.

What makes a covenant violation ‘intentional’ under this case?

The court held that a violation is intentional where the owner has actual or constructive notice of the restriction, knows or is told before completing the structure that it will violate the restriction, and then finishes it anyway. It does not matter that the owner may have started in good faith, ordered materials before learning of the problem, or genuinely interpreted the covenant differently. Once warned, completing the structure makes the violation intentional.

Why did Meienberg’s estoppel argument fail?

Meienberg argued the association was estopped because he had shown his plans to a member of an architectural advisory committee. The court rejected this because the committee was voluntary and had no authority to approve or disapprove plans, the plans he showed omitted the total height and the vent dimensions, the vents were never discussed, and he never obtained any approval. With no inducing act by the association and no justifiable reliance, the estoppel elements were not met.

Did the homeowner have to pay the association’s attorney fees?

Yes. The trial court awarded the association attorney fees under a fee-shifting provision in the CC&Rs, and the Court of Appeals affirmed. The appellate court also granted the association its attorney fees on appeal under that same CC&R provision, entitling the successful party to a reasonable attorney fee, subject to the association complying with the fee-request procedure in Rule 21(c).

What does this decision mean for Arizona homeowners and HOAs?

For associations, it strengthens the ability to obtain a mandatory injunction (not just damages) against a knowing violator and confirms that a completed, warned-about violation forfeits a hardship defense, protecting the uniformity of the CC&Rs. For owners, it is a caution: an informal check-in with a committee that lacks approval authority provides no protection, and building on after a warning is risky. Owners should obtain formal, written approval where the CC&Rs require it and fully disclose relevant dimensions.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation215 Ariz. 44, 156 P.3d 1149 (App. 2007)
Court / tribunalCourt of Appeals
Decision / key dateApril 30, 2007
Judge / panelJoseph W. Howard (Presiding Judge, author), John Pelander (Chief Judge, concurring), Garye L. Vasquez (Judge, concurring)
PartiesA mandatory-membership property owners’ association (Flying Diamond Airpark, LLC) sued a bound member (Jeffrey Meienberg) to enforce a recorded 22-foot CC&R height restriction after he completed an aircraft hangar that exceeded the limit.
Governing law
  • Ariz. R. Civ. P. 59(b) (16 A.R.S., Pt. 2) – motion to reopen the case for additional evidence
  • Ariz. R. Civ. App. P. 21(c) (17B A.R.S.) – procedure for requesting attorney fees on appeal
Topics
cc-and-rscovenantsarchitectural-reviewattorneys-feesprocedure
Outcome / holding

Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive notice of a recorded restrictive covenant, is warned before completing the violation that his structure will breach the covenant, and nonetheless finishes it, is an ‘intentional’ violator who cannot invoke the equitable doctrine of relative hardships (or reopen the record under Rule 59(b) for additional hardship evidence) to defeat enforcement. The court also rejected the owner’s equitable-estoppel defense because the association’s voluntary architectural advisory committee had no authority to approve or disapprove plans, and it granted the association its appellate attorney fees under a CC&R fee-shifting provision.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap7 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Flying Diamond Airpark, LLC v. Meienberg is a published Arizona Court of Appeals (Division Two) decision on enforcing a common-interest community’s recorded covenants, conditions, and restrictions. Flying Diamond Airpark is a mandatory-membership property owners’ association whose recorded declaration, referenced in each owner’s deed, bars structures more than twenty-two feet tall. Jeffrey Meienberg, a member bound by the CC&Rs, built an aircraft hangar whose three roof vents pushed its height roughly eight-and-three-quarter to ten-and-three-quarter inches over the limit. Before building, Meienberg showed plans to a member of a voluntary architectural advisory committee, but the plans omitted the total height and the vent dimensions, and the committee had no power to approve or reject plans. After framing began, the committee member warned Meienberg the vents would exceed the limit; Meienberg disagreed that vents counted and finished the hangar. The association sued and won a mandatory injunction ordering the hangar lowered, plus attorney fees under a CC&R fee-shifting clause. On appeal, Meienberg argued the trial court should have weighed the relative hardships, should have found the association estopped, and should have reopened the record for more hardship evidence. The Court of Appeals affirmed, holding that an owner with actual or constructive notice of a restriction who completes an offending structure anyway is an intentional violator who cannot invoke relative hardship, and that the voluntary committee’s lack of approval authority defeated the estoppel claim. The court awarded the association its appellate attorney fees under the CC&Rs.

Key Issues & Findings

The court applied the equitable rule that although injunctions enforcing restrictive covenants turn on equitable considerations, ‘equitable discretion should not be used to protect an intentional wrongdoer’ (Decker v. Hendricks). Synthesizing Arizona authority (Decker, Camelback Del Este, and Burke) with out-of-state cases (Sandstrom, Gladstone, and others), it held that an owner with actual or constructive notice of a restriction who is informed before completing an offending structure that it will violate the restriction, yet finishes it anyway, is an ‘intentional’ violator regardless of when expenditures were incurred. Such a violator forfeits any balancing of relative hardships, which in turn made Meienberg’s proffered Rule 59(b) hardship evidence irrelevant and its exclusion harmless. Adopting Meienberg’s timing-based rule, the court reasoned, would let any owner claim initial ignorance or a differing interpretation and thereby erode the uniformity of CC&Rs that all owners agreed to. On estoppel, applying an abuse-of-discretion / substantial-evidence standard, the court held substantial evidence supported the trial court: the advisory committee was voluntary and lacked authority to approve plans, the plans Meienberg submitted omitted the vents, the vents were never discussed, and Meienberg never obtained approval, so there was neither an inducing act nor justifiable reliance. Griffith was distinguished because there plan approval was mandatory and in writing.

Why It Matters

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.

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Camelback Del Este Homeowners Ass’n v. Warner: HOA Court Case Guide

Posted on by

Arizona HOA Case Explainer

How Arizona’s Court of Appeals held single-family deed restrictions against commercial encroachment and clarified that CC&R amendments must apply uniformly to every lot.

Arizona Court of Appeals | 156 Ariz. 21, 749 P.2d 930 (App. 1987) | Decided 1987-09-29

Read the source opinion FAQ

Scope note: This educational page summarizes Camelback Del Este Homeowners Ass’n v. Warner, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

The takeaway

Restrictive covenants limiting a subdivision to single-family residential use are enforceable against commercial encroachment, and a court will not sever individual border lots from the covenants where the neighborhood’s residential character remains substantially intact. A landowner who knowingly spends large sums gambling that restrictions will not be enforced cannot obtain a balancing of hardships or invoke estoppel against the association, and a covenant permitting amendment ‘in whole or in part’ still requires that any amendment apply uniformly to all lots absent unanimous consent.

Case Participants

Petitioner Side

  • Ronald H. Warner (Defendant/Appellant/Cross-Appellee)
    Lot owner who assembled nine lots and sought to build a commercial garden-office complex; challenged enforcement of the covenants.
  • Carolyn Warner (Defendant/Appellant/Cross-Appellee)
    Co-defendant with Ronald H. Warner.
  • Arthur P. Greenfield (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).
  • Danial D. Maynard (Counsel)
    Winston & Strawn
    Counsel for the Warners; ‘Danial’ spelling is per the reporter.
  • Donald J. Cleary (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).
  • Frank S. Bangs, Jr. (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).

Respondent Side

  • Camelback Del Este Homeowners Association (Plaintiff/Appellee/Cross-Appellant)
    Association representing the owners of the 83 single-family residences; sued to enforce the recorded deed restrictions.
  • Philip A. Robbins (Counsel)
    Robbins & Green, P.A.
    Counsel for the homeowners association (plaintiffs/appellees/cross-appellants).
  • Charlotte A. Ortlund (Counsel)
    Robbins & Green, P.A.
    Counsel for the homeowners association (plaintiffs/appellees/cross-appellants).

Neutral Parties

  • Roll, J. (Judge)
    Authored the opinion for the Court of Appeals, Division Two.
  • Livermore, P.J. (Judge)
    Presiding Judge; concurred.
  • Howard, J. (Judge)
    Judge; concurred.

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.

Litigation record

Step 1 1983-09

Ronald H. Warner buys one lot in Camelback Del Este and options eight more (at $150,000-$350,000 each) to assemble a site for a commercial garden-office complex.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1984-08-12

Warner meets with some subdivision owners about the project; he later claims none said they would enforce the restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1984-08

A lawyer from an adjoining subdivision warns Warner that even with a rezoning he still faces the deed restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 1984-10-09

Warner’s own poll of all homeowners shows he lacks substantial support for lifting the restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 1984-10-17

At the Phoenix City Council zoning hearing, a homeowner declares in Warner’s presence that they ‘will not relinquish these deed restrictions without a fight.’

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 1984-12-05

Camelback Del Este Homeowners Association files suit for declaratory and injunctive relief to enforce the covenants.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 1985-04-24

The association files an amended complaint adding a count on the timing and uniformity of any covenant amendment.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 1985-05-03

Warner moves for leave to file a counterclaim against certain homeowners, less than two weeks before trial.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 9 1985-05

Bench trial held before the superior court (May and June 1985).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 10 1986-01-30

Trial court grants the association declaratory and injunctive relief, enjoins Warner, and awards $44,750 in attorneys’ fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 11 1987-09-29

Arizona Court of Appeals, Division Two, affirms as modified and grants the association appellate fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 12 1988-03-01

Arizona Supreme Court denies review.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Camelback Del Este Homeowners Ass’n v. Warner about?

It was a 1987 Arizona Court of Appeals case in which a Phoenix homeowners association sued to enforce recorded single-family deed restrictions against Ronald Warner, who had assembled nine subdivision lots to build a commercial garden-office complex along Camelback Road. The court affirmed enforcement of the covenants and refused to release Warner’s lots from them.

Why wouldn’t the court release Warner’s lots from the covenants?

Under Continental Oil Co. v. Fennemore and the Decker v. Hendricks line, a court will not sever border lots from subdivision covenants where the neighborhood’s residential character remains substantially intact. The trial court found that although Camelback Road had grown enormously, 80 of the 83 lots were still desirable single-family homes, so the covenants’ purpose had not been frustrated. Releasing the front lots would invite gradual, unstoppable commercial encroachment.

Why didn’t the court weigh Warner’s financial loss as a hardship?

Warner claimed he would lose $350,000 to $400,000, but the court found he incurred nearly all of that after he knew about the restrictions and about homeowners’ intent to enforce them. Equity will not relieve a party who spends money gambling that covenants will go unenforced, so the trial court properly declined to balance the hardships.

Why did Warner’s estoppel argument fail?

Estoppel requires that the party claiming it lacked knowledge and the means to acquire knowledge of the relevant facts. A party’s silence does not create an estoppel when both sides have equal access to the facts. The deed restrictions were recorded and publicly available, and a homeowner had openly vowed to fight, so the association’s conduct did not estop it from enforcing the covenants.

What did the case decide about amending CC&Rs ‘in whole or in part’?

On the association’s cross-appeal, the court held that a clause letting a majority of owners change the covenants ‘in whole or in part’ does not allow lifting restrictions on only some lots. Absent unanimous consent, any amendment must apply uniformly to every lot in the subdivision. The court modified the judgment to grant that declaratory relief.

Is Camelback Del Este v. Warner still good law in Arizona?

Yes. It is a published, precedential Court of Appeals decision (the Arizona Supreme Court denied review in 1988) and was not depublished. It remains cited for the ‘first tier of lots’ changed-conditions analysis and for the rule that CC&R amendments must apply uniformly absent unanimous consent. This summary is educational and is not legal advice; consult a qualified Arizona attorney about a specific situation.

Case Dossier

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Case Summary

Case ID / citation156 Ariz. 21, 749 P.2d 930 (App. 1987)
Court / tribunalCourt of Appeals
Decision / key dateSeptember 29, 1987
Judge / panelRoll, J. (author), Livermore, P.J., Howard, J.
PartiesA homeowners association enforcing single-family deed restrictions against a lot owner who assembled nine lots for a commercial office complex.
Governing law
Topics
covenantscc-and-rsamendmentsattorneys-feesprocedure
Outcome / holding

Restrictive covenants limiting a subdivision to single-family residential use are enforceable against commercial encroachment, and a court will not sever individual border lots from the covenants where the neighborhood’s residential character remains substantially intact. A landowner who knowingly spends large sums gambling that restrictions will not be enforced cannot obtain a balancing of hardships or invoke estoppel against the association, and a covenant permitting amendment ‘in whole or in part’ still requires that any amendment apply uniformly to all lots absent unanimous consent.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap12 roadmap entries
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Study / briefing material1 section
FAQ / homeowner questions6 questions
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Key Issues & Findings

Case Summary

Camelback Del Este is a Phoenix subdivision of 83 single-family homes bordering the increasingly busy Camelback Road. The recorded deed restrictions limited every lot to one detached single-family dwelling. In September 1983 Ronald H. Warner bought one lot and optioned eight more, paying between $150,000 and $350,000 per home (well above the neighborhood’s roughly $119,000 top sale price), to assemble a site for a commercial garden-office complex, and then sought a City of Phoenix rezoning. When homeowners made clear they would fight, the Camelback Del Este Homeowners Association sued in December 1984 to enforce the covenants. After a bench trial, the superior court granted declaratory and injunctive relief, enforced the restrictions against Warner, enjoined him from removing homes to build offices, and awarded the association $44,750 in attorneys’ fees. Division Two of the Arizona Court of Appeals affirmed. It refused to sever the nine lots from the subdivision covenants because the neighborhood’s residential character remained substantially intact, following Continental Oil Co. v. Fennemore and the Decker v. Hendricks line and the ‘first tier of lots’ rationale. It held the trial court properly declined to balance the hardships because Warner spent his money knowingly, gambling that the restrictions would not be enforced. It rejected his estoppel defense, since homeowner silence cannot estop a party where both sides had equal means of knowledge, and upheld the Rule 13(f) denial of his last-minute counterclaim. On the association’s cross-appeal, the court modified the judgment to declare that the amendment clause allowing change ‘in whole or in part’ still requires any amendment to apply uniformly to all lots, and it affirmed the fee award while granting the association its appellate fees.

Key Issues & Findings

The court applied the settled Arizona rule from Continental Oil Co. v. Fennemore (1931) and the Decker v. Hendricks decisions: where the residential character of the whole neighborhood remains substantially intact, a court will not engage in a lot-by-lot analysis to release border lots from subdivision covenants. The trial court, which viewed the subdivision by day and night, found that although Camelback Road itself had grown from two lanes to seven and now carried the city’s heaviest traffic, the interior streets stayed quiet and 80 of the 83 lots remained desirable single-family homes, so the covenants’ purpose had not been frustrated. Releasing the three road-front lots (and the nine Warner assembled) would let the ‘first tier’ of defensive lots fall and invite gradual, unstoppable commercial encroachment on the rest. The court refused to balance hardships because Warner incurred nearly all of his claimed $350,000-$400,000 loss after learning of the restrictions and of homeowners’ intent to enforce them; equity will not relieve a party who gambles that covenants will go unenforced. Estoppel failed because a party’s silence cannot estop it where both sides had equal means of knowledge, and here a homeowner had publicly vowed to fight. Denial of Warner’s counterclaim, filed under two weeks before trial, was within the trial court’s Rule 13(f) discretion. Finally, reading the amendment clause (change ‘in whole or in part’) in light of La Esperanza and Montoya v. Barreras, the court held any amendment must apply uniformly to all lots absent unanimous consent, and it affirmed the discretionary fee award under A.R.S. section 12-341.01(B).

Why It Matters

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.

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