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John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association: HOA Court Case Guide

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Membership & CC&Rs | A.R.S. §§ 10-3601, 33-1801 to -1808 | 206 Ariz. 42

Division One affirms summary judgment for lot owners, holding that mandatory HOA membership must come from a recorded deed restriction-the declaration or a validly adopted amendment-and not from a corporation’s articles or bylaws.

Arizona Court of Appeals | 206 Ariz. 42, 75 P.3d 132 (App. 2003) (No. 1 CA-CV 02-0403) | Decided 2003-08-26

Read the source opinion FAQ

Scope note: This educational page summarizes John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association, 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

Mandatory membership in a newly created homeowners’ association can be imposed on owners of lots within an existing subdivision only through a deed restriction contained in a recorded instrument-a declaration or a validly adopted amendment to it. Articles of incorporation and bylaws purporting to compel membership are insufficient, because a nonprofit corporation cannot impose membership without consent under A.R.S. § 10-3601(B), and the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines but does not create such associations. Because no recorded restriction required membership before the November 30, 2001 amendment, the plaintiff lot owners were not members, A.R.S. § 10-3304’s member-standing threshold did not bar their declaratory-judgment action, and summary judgment for the owners was affirmed.

Case Participants

Petitioner Side

  • Wagon Wheel Park Homeowners Association (Appellant)
    Nonprofit Arizona corporation and defendant-appellant; incorporated in 1971 by six lot owners and later sought to impose mandatory membership, assessments, and liens on Park lot owners.
  • Jonathan J. Olcott (Counsel)
    Olcott & Shore, PLLC
    Counsel for the Association (defendant-appellant), Olcott & Shore, PLLC, Phoenix.
  • William F. Shore, III (Counsel)
    Olcott & Shore, PLLC
    Counsel for the Association (defendant-appellant), Olcott & Shore, PLLC, Phoenix.

Respondent Side

  • John W. Shamrock, et al. (Wagon Wheel Park lot owners) (Appellee)
    Plaintiffs-appellees; a group of Park lot owners (including the Gilcrease Family Trust, David H. Hemmings, the Pollard Family Trust, J.C. & C. Investments, Edward and Margaret Smith, the Lewis Revocable Trust, Joe and Ada Kaczmarski, and William R. Detor) who sought a declaration that membership was voluntary.
  • James L. Tanner (Counsel)
    Jackson White, P.C.
    Counsel for the lot owners (plaintiffs-appellees), Jackson White, P.C., Mesa.

Neutral Parties

  • Ann A. Scott Timmer (Judge)
    Arizona Court of Appeals, Division One
    Authored the opinion of the Court.
  • Daniel A. Barker (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; concurred in the opinion.
  • William F. Garbarino (Judge)
    Arizona Court of Appeals, Division One
    Judge; concurred in the opinion.

What happened

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

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

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

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

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

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

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

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

Litigation record

Step 1 1960-07

Northern Arizona Title Company records the 1960 Declaration of Restrictions for Wagon Wheel Park; it does not create or require a homeowners’ association.

Filed by: Court record

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

Step 2 1971

Six lot owners incorporate the Wagon Wheel Park Homeowners Association and record articles of incorporation stating that lot ownership entitles the owner to membership.

Filed by: Court record

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

Step 3 1980

By majority vote of lot owners, a revised 1980 Declaration of Restrictions is recorded; like its predecessor, it does not provide for or require an association.

Filed by: Court record

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

Step 4 1999

The Association records amended bylaws providing for automatic membership, mandatory assessments, and liens for unpaid assessments.

Filed by: Court record

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

Step 5 2001-03

A group of lot owners files a complaint seeking a declaration that membership is voluntary and that the Association cannot assess or lien non-members; the Association counterclaims.

Filed by: Court record

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

Step 6 2001-11-30

By majority vote, the Association records an amendment to the 1980 Declaration providing for automatic membership and Association administration of the restrictions.

Filed by: Court record

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

Step 7 2002

The trial court grants summary judgment for the owners, voids encumbrances recorded before November 30, 2001, rules § 10-3304 inapplicable, and awards the owners fees; the Association appeals (No. 1 CA-CV 02-0403).

Filed by: Court record

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

Step 8 2003-08-26

The Arizona Court of Appeals, Division One, affirms summary judgment, reverses and remands the fee award per a companion memorandum decision, and grants the owners fees on appeal.

Filed by: Court record

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

FAQ

What did Shamrock v. Wagon Wheel Park HOA decide?

The Arizona Court of Appeals held that mandatory membership in a newly created homeowners’ association can be imposed on owners of lots in an existing subdivision only through a deed restriction contained in a recorded instrument-that is, the declaration (CC&Rs) or a validly adopted amendment to it. The Association’s articles of incorporation and bylaws, standing alone, could not make the owners mandatory members. Because no recorded restriction required membership until a November 30, 2001 amendment, the plaintiff owners were not members, and the court affirmed summary judgment in their favor.

Can an HOA make membership mandatory just by adopting or recording bylaws?

No. The court explained that a nonprofit corporation cannot admit a member without that person’s express or implied consent under A.R.S. § 10-3601(B), so recorded bylaws stating that every owner is ‘automatically’ a member do not, by themselves, create membership. Mandatory membership that runs with the land must appear in a recorded deed restriction (the declaration or a proper amendment), and a declaration can be changed only in the manner it prescribes-here, by a vote of the majority of lot owners.

What role does the Arizona Planned Communities Act play in this decision?

The court held that the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines the kinds of associations it governs-those with mandatory membership and required assessments-but does not prescribe how to create such an association. In other words, the Act regulates mandatory-membership associations; it does not itself impose mandatory membership. To decide whether membership existed, the court therefore looked to common-law restrictive-covenant principles.

What is A.R.S. § 10-3304, and why didn’t it bar the owners’ lawsuit?

A.R.S. § 10-3304 provides that a nonprofit corporation’s power to act may generally be challenged only by members holding at least ten percent of the voting power or by at least fifty members. The Association argued the owners fell below that threshold. The court held the statute did not apply because the owners were not members-neither involuntarily (no recorded restriction required membership) nor voluntarily-so the standing limit never came into play.

What happened to the assessments and liens the Association had recorded?

The trial court ruled that all encumbrances the Association had recorded against Park lots were void from the date of recording until November 30, 2001-the date the owners adopted an amendment to the 1980 Declaration providing for automatic membership. The Court of Appeals affirmed the summary judgment on membership. The court did not decide the validity or effect of the November 30, 2001 amendment, because that issue was not raised in the complaint or ruled on below.

Is this decision binding precedent in Arizona?

Yes. Shamrock v. Wagon Wheel Park Homeowners Association is a published opinion of the Arizona Court of Appeals, Division One (206 Ariz. 42, 75 P.3d 132 (App. 2003)), so it is citable, binding authority on the point it decides. A separate, unpublished companion memorandum decision addressed the attorneys’-fee award and does not create precedent.

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 / citation206 Ariz. 42, 75 P.3d 132 (App. 2003) (No. 1 CA-CV 02-0403)
Court / tribunalCourt of Appeals
Decision / key dateAugust 26, 2003
Judge / panelAnn A. Scott Timmer (author), Daniel A. Barker (Presiding Judge), William F. Garbarino
PartiesJohn W. Shamrock and other Wagon Wheel Park lot owners (Plaintiffs-Appellees) v. Wagon Wheel Park Homeowners Association (Defendant-Appellant)
Governing law
Topics
membershipcc-and-rsassessmentscovenantsamendments
Outcome / holding

Mandatory membership in a newly created homeowners’ association can be imposed on owners of lots within an existing subdivision only through a deed restriction contained in a recorded instrument-a declaration or a validly adopted amendment to it. Articles of incorporation and bylaws purporting to compel membership are insufficient, because a nonprofit corporation cannot impose membership without consent under A.R.S. § 10-3601(B), and the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines but does not create such associations. Because no recorded restriction required membership before the November 30, 2001 amendment, the plaintiff lot owners were not members, A.R.S. § 10-3304’s member-standing threshold did not bar their declaratory-judgment action, and summary judgment for the owners was affirmed.

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 roadmap8 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

Wagon Wheel Park is a 180-lot platted subdivision in Lakeside, Navajo County. A recorded 1960 declaration of restrictions, replaced in 1980 by a majority-approved revised declaration, governed the lots; neither declaration provided for a homeowners’ association or required membership in one. Six lot owners incorporated the Wagon Wheel Park Homeowners Association in 1971, and in the 1990s the Association recorded bylaws-amended in 1999-stating that every lot owner was automatically a member obligated to pay assessments, with unpaid assessments becoming liens against the owner’s property. In March 2001, a group of lot owners sued for a declaration that membership was voluntary and that the Association could not levy assessments or record liens against non-members. The Association counterclaimed and argued the owners lacked standing under A.R.S. § 10-3304, which allows only members holding at least ten percent of the voting power, or at least fifty members, to challenge corporate action. The Court of Appeals, Division One, affirmed summary judgment for the owners. A nonprofit corporation cannot impose membership without consent (A.R.S. § 10-3601(B)); the Planned Communities Act defines but does not create mandatory-membership associations; and under common-law covenant principles, automatic membership must appear in a recorded deed restriction, changeable only as the declaration allows. Because no such restriction existed until the November 30, 2001 recorded amendment, § 10-3304 did not bar the owners’ suit.

Key Issues & Findings

The court framed the dispositive question as whether any facts supported finding the owners to be involuntary or voluntary members of the Association, because A.R.S. § 10-3304’s standing limit applies only to members. It first held that under A.R.S. § 10-3601(B) a nonprofit corporation cannot admit a member without that person’s express or implied consent, so the Association’s 1999 amended bylaws could not, standing alone, confer membership on the owners.

The court then rejected the Association’s argument that Arizona’s Planned Communities Act supplied mandatory membership. The Act’s definitions in A.R.S. § 33-1802 merely identify the kinds of associations the Act governs-those with mandatory membership and required assessments-but the Act does not prescribe how to create such an association. The court therefore looked to common-law restrictive-covenant principles, under which automatic membership must appear in a deed restriction embodied in a recorded instrument, citing Duffy v. Sunburst Farms, Hueg v. Sunburst Farms, and Horton v. Mitchell (quoting Arizona Biltmore Estates Ass’n v. Tezak).

Because the 1960 and 1980 Declarations contained no membership requirement, and because a declaration may be modified only in the manner it prescribes-here, by a vote of the majority of lot owners under the 1980 Declaration’s amendment clause-the Association’s articles of incorporation and amended bylaws never effected that change. The record reflected no majority amendment requiring membership until November 30, 2001. The owners’ awareness that the bylaws purported to confer membership, and their counsel’s uncertainty at a hearing, did not create a genuine issue of material fact. Accordingly, § 10-3304 did not deprive the owners of standing, and summary judgment was affirmed; the court reversed and remanded the attorneys’-fee award for the reasons stated in a companion memorandum decision and granted the owners their fees on appeal under A.R.S. § 12-341.01.

Why It Matters

Shamrock is a leading Arizona statement of a foundational rule: the owners of lots in an existing subdivision can be bound to mandatory HOA membership-and to the assessments and liens that come with it-only through a recorded deed restriction, meaning the declaration (CC&Rs) itself or a validly adopted amendment to it. Corporate documents such as articles of incorporation and bylaws, even when recorded and even when they state that membership is ‘automatic,’ cannot by themselves convert voluntary owners into mandatory members. The decision rests on two independent principles: nonprofit-corporation law requires consent to membership (A.R.S. § 10-3601(B)), and covenant law requires that burdens running with the land appear in a recorded instrument and be changed only in the manner the declaration allows.

For Arizona homeowners and boards, the case shows why the source and the procedure of an obligation matter. An association seeking mandatory membership must secure it through the declaration-amendment process the CC&Rs specify-often a majority or supermajority vote of owners-rather than through internally adopted bylaws. The opinion also clarifies the limited role of the Planned Communities Act: it regulates mandatory-membership associations but does not itself create the obligation. Finally, the case illustrates that the standing gate in A.R.S. § 10-3304, which restricts who may challenge a nonprofit corporation’s acts, did not apply where the plaintiffs were not members; the court noted that the Legislature later amended § 10-3304 to exempt planned-community members’ challenges to board action, effective September 18, 2003. Because this is a published opinion, it is binding precedent in Arizona.

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Swain v. Bixby Village Golf Course, Inc.: HOA Court Case Guide

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CC&R Enforcement & Amenity Covenants | Powell v. Washburn / Decker v. Hendricks | 247 Ariz. 405 (1 CA-CV 18-0397)

Division One holds that a recorded community covenant can compel an owner to affirmatively operate a golf course, and that self-created economic hardship is not a “material change in circumstances” that lets a buyer escape the restriction.

Arizona Court of Appeals | 247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397) | Decided 2019-09-19

Read the source opinion FAQ

Scope note: This educational page summarizes Swain v. Bixby Village Golf Course, Inc., 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

A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge.

Case Participants

Petitioner Side

  • Bixby Village Golf Course, Inc. (Defendant-Appellant)
    Bought both Ahwatukee golf courses in 2006 and in 2013 closed and dismantled the Lakes course before selling the parcel to TTLC; defendant/appellant.
  • TTLC Ahwatukee Lakes Investors, LLC (Defendant-Appellant)
    Development entity that bought the Lakes parcel with notice of the covenant and pending litigation, sought residential redevelopment, and counterclaimed material change in circumstances; defendant/appellant.
  • Chris R. Baniszewski (Counsel)
    Warner, Angle, Hallam, Jackson & Formanek PLC
    Counsel for defendants/appellants TTLC Ahwatukee Lakes Investors, LLC and Bixby Village Golf Course, Inc. (Phoenix).

Respondent Side

  • Linda W. Swain (Plaintiff-Appellee)
    Ahwatukee homeowner and enforcing “Benefitted Person” under the Declaration; sued to enforce the golf-course covenant. Reportedly paid roughly a $26,000 premium for a golf-course-adjacent lot.
  • Eileen Breslin (Plaintiff-Appellee)
    Ahwatukee homeowner and co-plaintiff/appellee who joined Swain in the CC&R enforcement action.
  • Timothy H. Barnes (Counsel)
    Timothy H. Barnes PC (now Fletcher Barnes Law)
    Counsel for plaintiffs/appellees Swain and Breslin (Phoenix).
  • Daniel D. Maynard (Counsel)
    Maynard, Cronin, Erickson, Curran & Reiter PLC
    Counsel on the homeowner/appellee side (Phoenix); FindLaw lists him for a co-appellee, likely in connection with a cross-appeal.

Neutral Parties

  • Randall M. Howe (Judge)
    Presiding Judge, Arizona Court of Appeals, Division One; authored the opinion.
  • Jennifer M. Perkins (Judge)
    Judge, Arizona Court of Appeals, Division One; joined the opinion.
  • David D. Weinzweig (Judge)
    Judge, Arizona Court of Appeals, Division One; joined the opinion.

What happened

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

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

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

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

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

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

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

Litigation record

Step 1 1986

The original developer records deed restrictions on the Ahwatukee golf-course land, limiting the Lakes parcel to golf-course use.

Filed by: Court record

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

Step 2 1992

The restrictions are memorialized in a Declaration of CC&Rs that ties the Lakes parcel to golf-course use, references favorable golf-course tax valuation, and designates adjoining homeowners as enforcing “Benefitted Persons.”

Filed by: Court record

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

Step 3 2006

Bixby Village Golf Course, Inc. purchases the two Ahwatukee golf courses.

Filed by: Court record

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

Step 4 2013

Bixby closes and dismantles the Ahwatukee Lakes course, draining the lakes and installing barbed-wire fencing.

Filed by: Court record

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

Step 5 2015

Homeowners Linda W. Swain and Eileen Breslin sue to enforce the CC&Rs; Bixby sells the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, which seeks residential redevelopment.

Filed by: Court record

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

Step 6

TTLC fails to obtain the 51% homeowner approval the Declaration requires to amend the golf-course covenant and counterclaims that a “material change in circumstances” justifies modifying it.

Filed by: Court record

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

Step 7 2018

The Maricopa County Superior Court grants summary judgment for the homeowners and enters a mandatory permanent injunction to restore and operate the course; TTLC and Bixby appeal (docketed 1 CA-CV 18-0397).

Filed by: Court record

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

Step 8 2019-09-19

Division One of the Arizona Court of Appeals affirms in a published opinion by Presiding Judge Howe, joined by Judges Perkins and Weinzweig.

Filed by: Court record

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

Step 9 2020-11-09

The United States Supreme Court denies certiorari, leaving the affirmed injunction in place.

Filed by: Court record

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

FAQ

What was Swain v. Bixby Village Golf Course about?

It was a dispute over the Ahwatukee Lakes golf course in Phoenix. Recorded CC&Rs limited the parcel to golf-course use and named surrounding homeowners as enforcing “Benefitted Persons.” After the course was closed and dismantled in 2013, homeowners Linda Swain and Eileen Breslin sued to enforce the covenant. The parcel’s new owner, TTLC Ahwatukee Lakes Investors, wanted to build housing and argued the covenant should be modified. The courts ordered the course restored and operated.

Can an Arizona covenant force a property owner to actually operate an amenity?

Yes. The Court of Appeals held that a properly drafted, recorded covenant can impose an affirmative duty, such as a duty to operate a golf course, not just prohibit other uses. Reading the Declaration under Powell v. Washburn to effectuate the drafters’ intent and purposes, the court affirmed a mandatory injunction requiring the owner to restore and run the course.

Why didn’t the “material change in circumstances” argument work?

Under the common-law standard from Decker v. Hendricks, only changes so fundamental that they defeat the covenant’s purpose will excuse performance. The court found continued golf-course operation remained economically feasible, and TTLC’s hardship was economic and largely self-created: it bought the land with notice of the covenant and pending litigation and failed to obtain the 51% homeowner approval the Declaration required to amend the restriction.

How could individual homeowners sue when no HOA was a party?

The Declaration expressly designated adjoining owners as enforcing “Benefitted Persons.” That gave individual homeowners the right to enforce the golf-course covenant directly, so Swain and Breslin could bring the action themselves without an HOA entity as the named plaintiff.

Did the Thirteenth Amendment prevent the court from ordering the owner to operate the course?

No. The court rejected TTLC’s involuntary-servitude argument. Because TTLC voluntarily acquired land already encumbered by the recorded covenant, and with notice of it, an order compelling compliance with the restriction did not amount to involuntary servitude under the Thirteenth Amendment.

Is Swain v. Bixby Village binding precedent, and who paid the attorneys’ fees?

Yes. It is a published opinion of the Arizona Court of Appeals, reported at 247 Ariz. 405, 450 P.3d 270 (App. 2019), and the U.S. Supreme Court denied certiorari in November 2020, so it remains citable authority. The court confirmed that the prevailing homeowners were entitled to recover their attorneys’ fees under the fee-shifting provision in the Declaration.

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 / citation247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397)
Court / tribunalCourt of Appeals
Decision / key dateSeptember 19, 2019
Judge / panelRandall M. Howe (Presiding Judge, author), Jennifer M. Perkins, David D. Weinzweig
PartiesLinda W. Swain and Eileen Breslin (neighboring homeowners / CC&R “Benefitted Persons”; Plaintiffs/Appellees) v. Bixby Village Golf Course, Inc. and TTLC Ahwatukee Lakes Investors, LLC (golf-course/property owners; Defendants/Appellants)
Governing law
  • A.R.S. §§ 42-13151 to -13154 (golf-course property-tax valuation; referenced in the CC&Rs)
  • U.S. Const. amend. XIII (involuntary servitude)
Topics
cc-and-rscovenantsamendmentsgood-faith-and-fair-dealingattorneys-fees
Outcome / holding

A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge.

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 roadmap9 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

Ahwatukee is a Phoenix master-planned community of roughly 5,200 homes built around two golf courses. Starting in 1986 the developer recorded deed restrictions, later memorialized in a 1992 Declaration of Covenants, Conditions & Restrictions, limiting the Ahwatukee Lakes parcel to golf-course use. The restriction served two purposes: it secured favorable Arizona golf-course property-tax valuation, and it protected adjoining homeowners, who were expressly designated as enforcing “Benefitted Persons.” In 2006 Bixby Village Golf Course, Inc. bought both courses, and in 2013 it closed and dismantled the Lakes course, draining its lakes and installing barbed-wire fencing. Homeowners Linda W. Swain and Eileen Breslin sued for breach of the CC&Rs. Bixby then sold the parcel to TTLC Ahwatukee Lakes Investors, LLC, which wanted to redevelop the land for housing. After failing to obtain the 51% homeowner approval needed to amend the covenant, TTLC counterclaimed that a “material change in circumstances” justified modifying it. The trial court granted summary judgment to the homeowners and entered a mandatory permanent injunction ordering the course restored and operated. Division One of the Arizona Court of Appeals affirmed. It held the covenant imposed an affirmative duty to operate the course, construed under Powell v. Washburn to effectuate the drafters’ intent and purposes. Applying Decker v. Hendricks, it rejected the material-change defense because operation remained feasible and TTLC bought with notice of the restriction and pending litigation. The court also rejected a Thirteenth Amendment involuntary-servitude challenge and confirmed the prevailing homeowners’ right to recover attorneys’ fees under the Declaration.

Key Issues & Findings

The court construed the covenant under Powell v. Washburn, reading the Declaration as a whole to give effect to the drafters’ intent and the covenant’s purposes. Because the restriction existed to preserve golf-course use for the benefit of adjoining owners and to secure favorable golf-course tax valuation, it imposed an affirmative duty to operate the course, not merely a passive limitation on other uses. The court rejected the argument that a covenant can only forbid conduct: nothing in Arizona law prevents a properly drafted, recorded covenant from compelling an owner to maintain and run an amenity.

On the counterclaim, the court applied the common-law changed-conditions standard from Decker v. Hendricks. Only changes so radical that they defeat the essential purpose of the restriction will excuse performance. Continued operation of the Lakes course remained economically feasible, and the hardship TTLC identified was economic and largely self-created: it bought the parcel with record notice of the golf-course covenant and with the homeowners’ enforcement litigation already pending, and it failed to obtain the 51% homeowner approval the Declaration required to amend the restriction. Self-inflicted economic disadvantage is not a material change in circumstances.

Equitable considerations supported the mandatory injunction. The homeowners had reasonably relied on the golf-course setting and paid for it, with one plaintiff having paid roughly a $26,000 premium for a golf-course-adjacent lot, and Arizona policy protects reasonable reliance on recorded residential restrictions. Finally, because TTLC voluntarily acquired encumbered land with notice, an order compelling compliance did not amount to involuntary servitude under the Thirteenth Amendment, and the fee-shifting provision in the Declaration entitled the prevailing homeowners to recover their attorneys’ fees.

Why It Matters

Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit.

The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.

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Raimey v. Ditsworth (Dreamland Villa Community Club, Inc.): HOA Court Case Guide

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Arizona Court of Appeals – Division One

A special-action ruling confirming that an invalid CC&R amendment fails community-wide, entitling homeowners to restitution and fee recovery.

Arizona Court of Appeals | 227 Ariz. 552, 261 P.3d 436 (App. 2011) | Decided 2011-07-21

Download the ruling PDF FAQ

Scope note: This educational page summarizes Raimey v. Ditsworth (Dreamland Villa Community Club, Inc.), a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Publication note: Raimey v. Ditsworth is a published, precedential Arizona Court of Appeals opinion; it is not memo.

The takeaway

On special-action review of a judgment entered on remand, the Court of Appeals held that the Dreamland Villa Second Amended Declarations are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18 – regardless of each owner’s purchase date or whether the owner participated in the prior cross-appeal – because deed restrictions must be enforced uniformly and DVCC, as a party to the earlier suit, is precluded from enforcing covenants already declared invalid. The court further held that owners who paid assessments under the invalid declarations are entitled to restitution with interest, that petitioners may record a notice of invalidity, and that they may pursue their pre- and post-appellate attorneys’ fees.

Case Participants

Petitioner Side

  • Daryle G. Raimey, et al. (Dreamland Villa homeowners) (Petitioners)
    Homeowners in the Six Sections who brought the special action to enforce the Raimey mandate community-wide; prevailed.
  • Steven W. Cheifetz (Counsel)
    Cheifetz Iannitelli Marcolini, P.C.
    Counsel for petitioners (homeowners); Phoenix.
  • Stuart F. Gross (Counsel)
    Cheifetz Iannitelli Marcolini, P.C.
    Counsel for petitioners (homeowners); Phoenix.

Respondent Side

  • Dreamland Villa Community Club, Inc. (Real Party in Interest)
    Arizona non-profit community association that recorded and sought to enforce the Second Amended Declarations; aligned with the respondent and opposed the petition.
  • Charles E. Maxwell (Counsel)
    Maxwell and Morgan, P.C.
    Counsel for real party in interest DVCC; Mesa.
  • Brian W. Morgan (Counsel)
    Maxwell and Morgan, P.C.
    Counsel for real party in interest DVCC; Mesa.

Neutral Parties

  • Hon. John Ditsworth (Judge)
    Maricopa County Superior Court judge named as nominal respondent; entered the judgment on mandate under review.
  • Michael J. Brown (Judge)
    Court of Appeals judge; authored the opinion.
  • Diane M. Johnsen (Judge)
    Presiding Judge; concurred.
  • John C. Gemmill (Judge)
    Court of Appeals judge; concurred.

What happened

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

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

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

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

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

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

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

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

Litigation record

Step 1 2006

DVCC files collection actions in Maricopa County Superior Court against Dreamland Villa homeowners for unpaid assessments under the Second Amended Declarations (consolidated Cause Nos. CC2006-211780 et al.).

Filed by: Court record

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

Step 2 2007

A related action (Cause No. CC2007-090680) is filed; the cases are consolidated – 27 cases in all.

Filed by: Court record

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

Step 3 2010

In Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411, the Court of Appeals holds the Second Amended Declarations invalid and unenforceable and awards the homeowners their appellate attorneys’ fees.

Filed by: Court record

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

Step 4 2010

On remand, the trial court (Hon. John Ditsworth) enters a judgment on mandate that invalidates the declarations only as to the homeowners who cross-appealed and declines to address restitution and trial-court fees.

Filed by: Court record

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

Step 5 2010

The homeowners file this petition for special action (No. 1 CA-SA 10-0255, Department B).

Filed by: Court record

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

Step 6 2011-07-21

The Court of Appeals, Division One, accepts special-action jurisdiction and grants relief, holding the declarations invalid as to all homeowners in sections 7, 14, 15, 16, 17, and 18.

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/raimey-v-ditsworth/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 did Raimey v. Ditsworth decide?

The Court of Appeals held that the Dreamland Villa “Second Amended Declarations” – amendments that tried to impose mandatory association membership and assessments – are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18, not just the homeowners who had previously cross-appealed. It also directed restitution for owners who had paid, allowed a recorded notice of invalidity, and permitted recovery of trial-court attorneys’ fees.

Does the ruling protect homeowners who never joined the lawsuit?

Yes. The court reasoned that deed restrictions are a contract among all lot owners and must be applied uniformly. Because the association was a party to the earlier case and the amendments were declared invalid, it is collaterally estopped from enforcing them against anyone in the affected sections – the invalidation deprives the association of the power to enforce, rather than conferring a benefit on nonparties.

Does it matter when a homeowner bought their lot?

No. The court held the Second Amended Declarations invalid as to all homeowners regardless of purchase date. It declined to follow dicta from the North Carolina case Armstrong v. Ledges suggesting an amendment could bind later buyers who purchase with notice, holding that an invalid restriction does not become valid based on the timing of a lot purchase.

Why was this brought as a “special action” instead of an appeal?

A judgment a trial court enters on remand, to carry out an appellate court’s specific directions, is generally not itself appealable. The court explained that a special action is the appropriate vehicle to review whether the trial court correctly followed the appellate mandate, and that the scope of the prior ruling was a pure question of law.

Could the homeowners get their money and attorneys’ fees back?

Yes. Owners who had paid the vacated judgments were entitled to restitution with interest, subject to equitable reduction if the association could show a particular owner used the facilities. The court also held that the homeowners’ broadly worded appellate fee request preserved their right to seek the attorneys’ fees they had incurred in the superior court, and it awarded them their fees for the special action.

Is Raimey v. Ditsworth a binding, published decision?

Yes. It is a published, precedential opinion of the Arizona Court of Appeals, Division One, reported at 227 Ariz. 552, 261 P.3d 436 (App. 2011). It is one of the leading Arizona authorities – often discussed alongside Kalway v. Calabria Ranch – limiting an association’s power to impose new assessment obligations through generic amendment provisions.

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 / citation227 Ariz. 552, 261 P.3d 436 (App. 2011)
Court / tribunalCourt of Appeals
Decision / key dateJuly 21, 2011
Judge / panelMichael J. Brown (author), Diane M. Johnsen (Presiding Judge, concurring), John C. Gemmill (concurring)
PartiesDreamland Villa homeowners (petitioners) v. Dreamland Villa Community Club, Inc. (real party in interest), on special-action review of a Maricopa County Superior Court judgment entered on remand (Hon. John Ditsworth, respondent judge).
Governing law
Topics
covenantscc-and-rsamendmentsassessmentsattorneys-fees
Outcome / holding

On special-action review of a judgment entered on remand, the Court of Appeals held that the Dreamland Villa Second Amended Declarations are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18 – regardless of each owner’s purchase date or whether the owner participated in the prior cross-appeal – because deed restrictions must be enforced uniformly and DVCC, as a party to the earlier suit, is precluded from enforcing covenants already declared invalid. The court further held that owners who paid assessments under the invalid declarations are entitled to restitution with interest, that petitioners may record a notice of invalidity, and that they may pursue their pre- and post-appellate attorneys’ fees.

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

Raimey v. Ditsworth arose from a long-running dispute in the Dreamland Villa retirement community near Mesa, Arizona, over whether recorded amendments called the “Second Amended Declarations” could impose mandatory association assessments on homeowners in six sections of the subdivision (sections 7, 14, 15, 16, 17, and 18). In an earlier appeal, Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42 (App. 2010), the Court of Appeals held those amendments invalid because owners had never been alerted, when they took title, that they could be subjected to such assessments. On remand, the trial court read the appellate mandate narrowly, invalidating the declarations only as to the homeowners who had actually cross-appealed. A group of homeowners then brought this special action. The Court of Appeals accepted special-action jurisdiction, explaining that a special action, not an appeal, is the proper way to review a judgment entered on remand under an appellate mandate. On the merits, it held that because deed restrictions operate as mutual, community-wide servitudes that must be applied uniformly, the invalidity reaches every homeowner in the six sections regardless of purchase date or participation in the prior case. The court also directed restitution to owners who had paid assessments under the invalid declarations, permitted them to record a notice of invalidity, and allowed them to seek the attorneys’ fees they incurred in the superior court.

Key Issues & Findings

The court reasoned that deed restrictions constitute a contract among all lot owners in a subdivision and, absent contrary language, must apply uniformly to every lot; allowing a covenant to be invalid as to the cross-appellants yet enforceable against their neighbors would create an impermissible “patchwork quilt” of restrictions. Because Raimey conclusively held the Second Amended Declarations invalid, DVCC – a party to that suit – is collaterally estopped from enforcing them against anyone in the Six Sections. The court analogized this to a facial invalidation of a statute, which bars the government from enforcing the law at all, not merely against the challenger. It rejected DVCC’s argument that the declarations were merely “voidable” and therefore enforceable against nonparties absent a timely challenge, treating “invalid” as meaning the covenants simply cannot be enforced, and it rejected reliance on the dicta in Armstrong v. Ledges about subsequent purchasers who buy with notice, holding that an invalid restriction does not become valid based on the timing of a lot purchase.

Why It Matters

Raimey is one of the leading Arizona decisions – frequently paired with Kalway v. Calabria Ranch – limiting a community association’s power to use a generic amendment provision to impose new affirmative burdens, such as mandatory assessments, that owners were never alerted to when they bought. It confirms that once a court holds such an amendment invalid, the invalidity runs to the whole affected community: the association cannot enforce the covenant against later purchasers or against neighbors who sat out the litigation, because deed restrictions must be applied uniformly and an invalid restriction is not cured by the timing of a lot purchase.

The decision is also a practical roadmap for what happens after a homeowner wins. It confirms that a special action – not an appeal – is the proper vehicle to police a trial court that misreads an appellate mandate on remand; that owners who already paid assessments under the invalidated declarations are entitled to restitution with interest; that owners may record a notice of invalidity so the title record reflects the ruling; and that a broadly worded appellate fee request can preserve the right to recover trial-court fees, even where the specific pre-appellate fees were not itemized. For associations and owners alike, it underscores that CC&R amendments creating new financial obligations are vulnerable, and that the consequences of losing extend community-wide.

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Wilson v. Playa de Serrano: HOA Court Case Guide

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Arizona Court of Appeals, Division Two

A published 2005 opinion on when an HOA may restrict who occupies an individually owned unit—and why federal fair-housing compliance is not enough.

Last updated July 1, 2026. Case: Wilson v. Playa de Serrano; 211 Ariz. 511, 123 P.3d 1148 (App. 2005); No. 2 CA-CV 2005-0072; Pima County Superior Court No. C20042880 (Hon. Jane L. Eikleberry).

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Absent specific authorization in the recorded Declaration (CC&Rs), a common-interest homeowners’ association cannot impose a 55-and-older occupancy restriction on individually owned townhouses merely by amending its bylaws; compliance with the federal FHAA/HOPA shows only that enforcing such a restriction would not be illegal, not that the association has the contractual authority to impose it. The summary judgment for the association was reversed and the case remanded for entry of judgment for the homeowner, with reasonable attorney fees.

Case Participants

Neutral Parties

  • William M. Wilson (Appellant)
    Individual townhouse owner and plaintiff below; challenged the age-restriction bylaws amendment.
  • Playa de Serrano (Appellee)
    Arizona non-profit corporation / homeowners’ association governing the 1969 townhouse development; defendant below.
  • Stephen M. Weeks (Counsel)
    Weeks & Laird, PLLC (Tucson)
    Attorney for Plaintiff/Appellant William M. Wilson.
  • Tanis A. Duncan (Counsel)
    Law Offices of Tanis A. Duncan (Tucson)
    Attorney for Defendant/Appellee Playa de Serrano.
  • Joseph W. Howard (Judge)
    Presiding Judge; author of the opinion.
  • J. William Brammer, Jr. (Judge)
    Judge; concurred.
  • Peter J. Eckerstrom (Judge)
    Judge; concurred.
  • Hon. Jane L. Eikleberry (Judge)
    Pima County Superior Court judge who granted summary judgment to the association (reversed on appeal).

What happened and why it matters

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

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

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

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

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

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

Step-by-step litigation record

Step 1969 Playa de Serrano subdivision established; recorded Declaration calls it “an adult townhouse development” and gives the association control of common areas.
Step 1988 Congress enacts the Federal Fair Housing Amendments Act (FHAA), barring familial-status discrimination absent an exemption such as “housing for older persons.”
Step 1993 About five years after the FHAA, Wilson and his mother purchase a townhouse in Playa de Serrano; she later transfers her interest to him.
Step 1995 Congress enacts the Housing for Older Persons Act (HOPA), easing the requirements for the older-persons exemption.
Step 2002 Owners vote 25-6 to amend the bylaws to declare the community age-restricted and impose a 55-and-older occupancy requirement; HUD later finds the policies HOPA-compliant.
Step 2004 Wilson sues Playa de Serrano for a declaratory judgment that the restriction is invalid and for injunctive relief; cross-motions for summary judgment follow.
Step 2004-2005 Pima County Superior Court (Hon. Jane L. Eikleberry) grants summary judgment to the association, finding HOPA compliance validated the restriction.
Step 2005-11-30 Arizona Court of Appeals, Division Two, reverses and remands for entry of judgment for Wilson, with attorney fees.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/wilson-v-playa-de-serrano/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 2005-11-30

Opinion

Type: Decision or judgment

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

Download source file
2005-11-30_001_opinion.pdf

FAQ

What was Wilson v. Playa de Serrano about?

It was a declaratory-judgment dispute between a townhouse owner, William M. Wilson, and his homeowners’ association, Playa de Serrano. In 2002 the owners amended the association’s bylaws to make the community age-restricted, requiring each unit to be occupied by at least one person fifty-five or older. Wilson argued the recorded Declaration did not authorize such a restriction, so the bylaws amendment could not validly impose it.

What did the Arizona Court of Appeals decide?

Division Two reversed summary judgment for the association. It held that, absent specific authorization in the recorded Declaration (CC&Rs), neither the Board nor a majority of owners could impose a 55-and-older occupancy restriction on individually owned townhouses by amending the bylaws. The case was remanded for entry of judgment in favor of Wilson.

Why did compliance with HOPA and the FHAA not save the age restriction?

The court explained that complying with the federal Housing for Older Persons Act (HOPA) and Fair Housing Amendments Act (FHAA)—and even a favorable HUD determination—only establishes that enforcing an age restriction would not be illegal. It does not give the association the contractual authority or right to impose the restriction in the first place, which must come from the Declaration.

Did the phrase “adult townhouse development” authorize a 55-and-older rule?

No. The court reasoned that when Playa de Serrano was formed in 1969, an “adult” was someone at least twenty-one years old, so the label would not restrict occupancy to persons fifty-five or older. The court also noted that adult-only occupancy covenants became illegal under the 1988 FHAA, so the “adult townhouse” language did not establish an over-fifty-five community.

What legal rule does the case stand for regarding HOA rulemaking?

Following Shamrock v. Wagon Wheel Park HOA and Restatement (Third) of Property: Servitudes § 6.7(3), the court held that a common-interest community lacks inherent power to restrict the use or occupancy of individually owned lots unless the recorded declaration specifically authorizes it. A general power to adopt “rules and regulations” is not a specific authorization to change unit occupancy.

Is this decision binding, and who paid the attorney fees?

Yes—it is a published, precedential opinion of the Arizona Court of Appeals, Division Two, filed November 30, 2005. Because Wilson prevailed, the court remanded for entry of judgment in his favor and awarded him his reasonable attorney fees at trial and, upon compliance with Rule 21, on appeal.

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 / citation211 Ariz. 511, 123 P.3d 1148 (App. 2005); No. 2 CA-CV 2005-0072
Court / tribunalCourt of Appeals
Decision / key dateNovember 30, 2005
Judge / panelJoseph W. Howard (Presiding Judge, author), J. William Brammer, Jr. (Judge, concurring), Peter J. Eckerstrom (Judge, concurring)
PartiesIndividual townhouse owner William M. Wilson sued his homeowners’ association, Playa de Serrano, seeking a declaration that a 2002 bylaws amendment imposing a 55-and-older occupancy restriction was invalid.
Governing law
Topics
cc-and-rscovenantsfair-housingattorneys-feesprocedure
Outcome / holding

Absent specific authorization in the recorded Declaration (CC&Rs), a common-interest homeowners’ association cannot impose a 55-and-older occupancy restriction on individually owned townhouses merely by amending its bylaws; compliance with the federal FHAA/HOPA shows only that enforcing such a restriction would not be illegal, not that the association has the contractual authority to impose it. The summary judgment for the association was reversed and the case remanded for entry of judgment for the homeowner, with reasonable attorney fees.

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Parties, Court, and Research Coverage

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Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

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

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

Why It Matters

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

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

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Sycamore Hills Estates Homeowners Association, Inc. v. Zablotny: HOA Court Case Guide

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CC&Rs / Ultra Vires | A.R.S. sections 10-3304, 33-1802 | 2 CA-CV 2019-0200

After stipulating to a judgment approving its settlement with homeowners, an HOA tried to void the judgment and the settlement; Division Two affirmed the denial under A.R.S. section 10-3304 but vacated a supplemental attorney-fee award granted before the response deadline.

Last updated July 1, 2026. Case: Sycamore Hills Estates Homeowners Association, Inc. v. Zablotny; 250 Ariz. 479; 481 P.3d 705 (App. 2021) (No. 2 CA-CV 2019-0200); C20154533.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

A trial court that has general subject-matter jurisdiction over the underlying contract action may enter a stipulated (consent) judgment granting relief outside the pleadings, so the judgment approving the parties’ settlement agreement was not void under Rule 60(b)(4). Under A.R.S. section 10-3304, a nonprofit planned-community association cannot challenge the validity of its own corporate action on the ground that it lacked power to act, so the Association could not void its settlement agreement as ultra vires. However, the trial court denied the Association procedural due process by granting the opposing party’s supplemental attorney-fee application before the Association’s time to respond had expired, and that fee award must be redetermined.

Case Participants

Neutral Parties

  • Sycamore Hills Estates Homeowners Association, Inc. (Plaintiff/Appellant)
    Arizona non-profit corporation and planned-community association created by the Sycamore Hills Estates CC&Rs; moved under Rule 60(b)(4) to set aside the stipulated judgment approving its own settlement and appealed the denial.
  • Kenneth W. Zablotny and Barbara K. Zablotny (Defendants/Appellees)
    Husband and wife, individually and as trustees of the Kenneth W. Zablotny and Barbara K. Zablotny Joint Living Trust dated August 29, 1995; homeowners bound by the CC&Rs who sued the Association in 2015 and defended the settlement and judgment.
  • Mark E. Chadwick (Counsel)
    Munger Chadwick & Denker P.L.C.
    Counsel for Plaintiff/Appellant Sycamore Hills Estates Homeowners Association, Inc. (Munger Chadwick & Denker P.L.C., Tucson).
  • Gregory L. Miles (Counsel)
    Davis Miles McGuire Gardner PLLC
    Counsel for Defendants/Appellees Kenneth and Barbara Zablotny (Davis Miles McGuire Gardner PLLC, Tempe).
  • Marshall R. Hunt (Counsel)
    Davis Miles McGuire Gardner PLLC
    Counsel for Defendants/Appellees Kenneth and Barbara Zablotny (Davis Miles McGuire Gardner PLLC, Tempe).
  • Judge Brearcliffe (Judge)
    Arizona Court of Appeals, Division Two
    Authored the opinion of the Court.
  • Presiding Judge Eppich (Judge)
    Arizona Court of Appeals, Division Two
    Concurred in the opinion.
  • Chief Judge Vasquez (Judge)
    Arizona Court of Appeals, Division Two
    Concurred in the opinion.
  • The Honorable Charles V. Harrington (Judge)
    Superior Court in Pima County
    Trial judge who entered the stipulated judgment and denied the Rule 60(b)(4) motion (No. C20154533).

What happened and why it matters

Sycamore Hills Estates is a residential community governed by an Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs), which created the Sycamore Hills Estates Homeowners Association. Kenneth and Barbara Zablotny, homeowners bound by the CC&Rs, sued the Association in 2015 for allegedly breaching the CC&Rs. The parties settled, signed a written settlement agreement, and stipulated to a form of final judgment that incorporated the settlement by reference. In March 2017 the trial court approved the settlement and entered the stipulated judgment. In May 2019 the Association moved under Ariz. R. Civ. P. 60(b)(4) to set the judgment aside, arguing the court had no jurisdiction ‘to render’ a declaratory approval of relief the pleadings never requested, and that its own agreement to a settlement provision conflicting with the CC&Rs was an ultra vires act. The Court of Appeals, Division Two, affirmed the denial of that motion. It held that a court with general jurisdiction over the underlying contract dispute may enter a consent judgment granting relief beyond the pleadings, and that A.R.S. section 10-3304 bars a nonprofit planned-community association from challenging the validity of its own corporate action for lack of power. Separately, the court held the trial court violated procedural due process by granting the Zablotnys’ supplemental attorney-fee request before the Association’s time to respond had run, and it vacated and remanded that fee award. Neither side wholly prevailed, so the court awarded no fees or costs on appeal.

Reviewing the denial of the Rule 60(b)(4) motion de novo, the court explained that a judgment is void only when the court entering it lacked jurisdiction over the subject matter, over the person, or to render the particular judgment or order entered. The Association relied on Andrews v. Andrews for the proposition that a court’s power is limited by the nature of the suit and the issues raised in the pleadings; in Andrews a dissolution court’s affirmative money judgment on a claim outside the statutory dissolution scheme, and never pleaded as a civil claim, was void. The court assumed without deciding that the judgment’s language approving and incorporating the settlement agreement amounted to a declaratory judgment, and acknowledged that neither party had pleaded for declaratory relief (the settlement did not yet exist when the complaint was filed). It nevertheless held the parties’ stipulation asking the court to enter a judgment approving the settlement supplied the power to grant that relief. Drawing on Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., the court reiterated that provisions of a consent judgment may be sustained and enforced even where the relief was outside the pleadings, so long as the court has general jurisdiction over the matters adjudicated. Because the Association did not contest the trial court’s constitutional and statutory authority to hear the underlying contract action, and because the parties agreed to the relief, the stipulated judgment was valid and not void.

Turning to the ultra vires theory, the court noted the Association had certified in the settlement that its signatories held full corporate authority, yet now argued that section III of the agreement could only be granted by a member vote and could not lawfully benefit the Zablotnys alone. The court held A.R.S. section 10-3304(A) forecloses that argument: the validity of corporate action may not be challenged for lack of power except in the three situations listed in subsection (B). For a planned-community association as defined in A.R.S. section 33-1802, a power-to-act challenge is limited to a proceeding by a member against the corporation to enjoin the act, or a proceeding by the corporation against a current or former director, officer, employee, or agent. The Association was neither a member nor suing an officer or agent; it was attacking its own authority, which the statute does not permit. The court acknowledged the statute could allow an impermissible corporate act to stand, but reasoned that the act is not thereby unchallengeable, only that this Association may not bring the challenge, and affirmed on that alternative ground under Forszt v. Rodriguez. Finally, applying de novo review to the due-process claim, the court calculated that the Association had until September 17, 2019 to respond to the supplemental fee application under Rules 54(g), 7.1, 6, and 5(c), yet the trial court ruled on September 13. Because a party opposing fees is entitled to be heard on their reasonableness (Reed v. Reed), and a later motion for new trial does not cure the deprivation (Morrison v. Shanwick), the premature award violated procedural due process and had to be vacated. The court lacked jurisdiction to review the Rule 59 ruling because it was entered after, and not designated in, the notice of appeal.

For Arizona homeowners associations, this published decision is a strong caution against trying to undo a settlement the association itself negotiated and stipulated to. Once a court with general jurisdiction over a contract dispute enters a consent judgment, that judgment is not void merely because it grants relief the original pleadings never requested; the parties’ stipulation supplies the court’s power to act. Just as importantly, A.R.S. section 10-3304 bars a nonprofit planned-community association from later escaping its own corporate action by calling it ultra vires. The Legislature channeled power-to-act challenges into narrow paths, chiefly a suit by a member to enjoin the act or a suit by the association against its own director, officer, employee, or agent, so a board that agrees to terms it may lack authority to grant cannot simply repudiate the deal by attacking its own authority. Boards should confirm their authority before signing, because the corporate-authority defense will generally not be available to them afterward.

The opinion is equally significant on procedure. Even a party that loses on the merits is entitled to procedural due process on attorney fees, meaning a real opportunity to be heard on the reasonableness and appropriateness of a fee request before the court rules. A trial court that grants a supplemental fee application before the opponent’s response deadline runs commits reversible error, and a later motion for new trial or reconsideration does not cure it. The decision also reminds litigants that a notice of appeal must designate each order challenged, or the appellate court will lack jurisdiction to review it, and that appellate fees under A.R.S. section 12-341.01 may be denied outright where neither side completely prevails.

Step-by-step litigation record

Step 2015 The Zablotnys filed a complaint in Pima County Superior Court (No. C20154533) alleging the Association breached the CC&Rs.
Step 2017-03 The trial court approved the parties’ settlement agreement and entered the stipulated final judgment incorporating it by reference.
Step 2019-05 The Association filed a Rule 60(b)(4) motion to set aside the March 2017 judgment as void and to void the settlement agreement as ultra vires.
Step 2019-08-09 The trial court denied the Rule 60(b)(4) motion in an unsigned order.
Step 2019-08-28 The Zablotnys applied for a supplemental award of attorney fees incurred defending the Rule 60(b)(4) motion.
Step 2019-09-05 The Association filed a notice of appeal from the August 9 order.
Step 2019-09-13 The trial court granted the Zablotnys’ supplemental fee application before the Association filed any opposition.
Step 2019-09-17 The Association filed its response to the supplemental fee application and later a Rule 59 motion for relief from the fee award.
Step 2021-01-20 Division Two affirmed the Rule 60(b)(4) denial, vacated the supplemental fee award on due-process grounds, and remanded.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/sycamore-hills-estates-hoa-v-zablotny/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 2021-01-20

Opinion

Type: Decision or judgment

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

Download source file
2021-01-20_001_opinion.pdf

FAQ

Can a homeowners association undo a stipulated judgment it agreed to?

Generally no. The Court of Appeals held that a court with general jurisdiction over the underlying contract dispute may enter a stipulated (consent) judgment, even one granting relief the pleadings never requested, so long as the parties agreed to it. Because the Association did not contest the trial court’s authority to hear the underlying contract action and had stipulated to the form of judgment, the March 2017 judgment approving the settlement was not void under Rule 60(b)(4).

What is an ultra vires act, and why did that argument fail here?

An ultra vires act is one taken outside the authority of the corporate officers. The Association argued its agreement to section III of the settlement was ultra vires because it conflicted with the CC&Rs and was not approved by a member vote. That argument failed because A.R.S. section 10-3304(A) bars challenging the validity of corporate action on the ground that the corporation lacked power to act, except in narrow situations that did not apply.

How does A.R.S. section 10-3304 limit challenges to an association’s authority?

For a nonprofit planned-community association as defined in A.R.S. section 33-1802, a power-to-act challenge is limited to two settings: a proceeding by a member of the association against the corporation to enjoin the act, or a proceeding by the corporation against a current or former director, officer, employee, or agent. Because the Association was attacking its own authority (not suing an officer or being sued by a member), it could not raise the ultra vires claim.

Why did the court vacate the supplemental attorney-fee award?

The trial court granted the Zablotnys’ supplemental fee application on September 13, 2019, before the Association’s deadline to respond (September 17, 2019, under Rules 54(g), 7.1, 6, and 5(c)). Procedural due process guarantees a party opposing fees a meaningful opportunity to be heard on their reasonableness, so the premature award was reversible error. The court vacated the award and remanded for the trial court to decide the fee question again.

Why couldn’t the appeals court review the denial of the Rule 59 motion?

The order denying the Rule 59 motion was entered after the Association had already filed its notice of appeal, and the notice did not designate that later order. Under Rule 8(c)(3), a notice of appeal must specify the judgment or order being appealed, so the Court of Appeals had no jurisdiction to review the Rule 59 ruling.

Is this decision binding precedent in Arizona?

Yes. This is a published opinion of the Arizona Court of Appeals, Division Two, reported at 250 Ariz. 479 and 481 P.3d 705 (App. 2021). Unlike an unpublished memorandum decision, a published opinion is precedential and may be cited as binding authority in Arizona courts.

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 / citation250 Ariz. 479; 481 P.3d 705 (App. 2021) (No. 2 CA-CV 2019-0200)
Court / tribunalCourt of Appeals
Decision / key dateJanuary 20, 2021
Judge / panelJudge Brearcliffe (author), Presiding Judge Eppich (concurring), Chief Judge Vasquez (concurring)
PartiesA homeowners association (Sycamore Hills Estates HOA) sought to set aside a stipulated judgment approving its own settlement with homeowners (the Zablotnys), arguing the court could not render the judgment and that its settlement was an ultra vires act; the Court of Appeals affirmed the denial but vacated a premature attorney-fee award.
Governing law
Topics
cc-and-rscovenantsattorneys-feesprocedure
Outcome / holding

A trial court that has general subject-matter jurisdiction over the underlying contract action may enter a stipulated (consent) judgment granting relief outside the pleadings, so the judgment approving the parties’ settlement agreement was not void under Rule 60(b)(4). Under A.R.S. section 10-3304, a nonprofit planned-community association cannot challenge the validity of its own corporate action on the ground that it lacked power to act, so the Association could not void its settlement agreement as ultra vires. However, the trial court denied the Association procedural due process by granting the opposing party’s supplemental attorney-fee application before the Association’s time to respond had expired, and that fee award must be redetermined.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap9 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

Sycamore Hills Estates is a residential community governed by an Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs), which created the Sycamore Hills Estates Homeowners Association. Kenneth and Barbara Zablotny, homeowners bound by the CC&Rs, sued the Association in 2015 for allegedly breaching the CC&Rs. The parties settled, signed a written settlement agreement, and stipulated to a form of final judgment that incorporated the settlement by reference. In March 2017 the trial court approved the settlement and entered the stipulated judgment. In May 2019 the Association moved under Ariz. R. Civ. P. 60(b)(4) to set the judgment aside, arguing the court had no jurisdiction ‘to render’ a declaratory approval of relief the pleadings never requested, and that its own agreement to a settlement provision conflicting with the CC&Rs was an ultra vires act. The Court of Appeals, Division Two, affirmed the denial of that motion. It held that a court with general jurisdiction over the underlying contract dispute may enter a consent judgment granting relief beyond the pleadings, and that A.R.S. section 10-3304 bars a nonprofit planned-community association from challenging the validity of its own corporate action for lack of power. Separately, the court held the trial court violated procedural due process by granting the Zablotnys’ supplemental attorney-fee request before the Association’s time to respond had run, and it vacated and remanded that fee award. Neither side wholly prevailed, so the court awarded no fees or costs on appeal.

Key Issues & Findings

Reviewing the denial of the Rule 60(b)(4) motion de novo, the court explained that a judgment is void only when the court entering it lacked jurisdiction over the subject matter, over the person, or to render the particular judgment or order entered. The Association relied on Andrews v. Andrews for the proposition that a court’s power is limited by the nature of the suit and the issues raised in the pleadings; in Andrews a dissolution court’s affirmative money judgment on a claim outside the statutory dissolution scheme, and never pleaded as a civil claim, was void. The court assumed without deciding that the judgment’s language approving and incorporating the settlement agreement amounted to a declaratory judgment, and acknowledged that neither party had pleaded for declaratory relief (the settlement did not yet exist when the complaint was filed). It nevertheless held the parties’ stipulation asking the court to enter a judgment approving the settlement supplied the power to grant that relief. Drawing on Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., the court reiterated that provisions of a consent judgment may be sustained and enforced even where the relief was outside the pleadings, so long as the court has general jurisdiction over the matters adjudicated. Because the Association did not contest the trial court’s constitutional and statutory authority to hear the underlying contract action, and because the parties agreed to the relief, the stipulated judgment was valid and not void.

Turning to the ultra vires theory, the court noted the Association had certified in the settlement that its signatories held full corporate authority, yet now argued that section III of the agreement could only be granted by a member vote and could not lawfully benefit the Zablotnys alone. The court held A.R.S. section 10-3304(A) forecloses that argument: the validity of corporate action may not be challenged for lack of power except in the three situations listed in subsection (B). For a planned-community association as defined in A.R.S. section 33-1802, a power-to-act challenge is limited to a proceeding by a member against the corporation to enjoin the act, or a proceeding by the corporation against a current or former director, officer, employee, or agent. The Association was neither a member nor suing an officer or agent; it was attacking its own authority, which the statute does not permit. The court acknowledged the statute could allow an impermissible corporate act to stand, but reasoned that the act is not thereby unchallengeable, only that this Association may not bring the challenge, and affirmed on that alternative ground under Forszt v. Rodriguez. Finally, applying de novo review to the due-process claim, the court calculated that the Association had until September 17, 2019 to respond to the supplemental fee application under Rules 54(g), 7.1, 6, and 5(c), yet the trial court ruled on September 13. Because a party opposing fees is entitled to be heard on their reasonableness (Reed v. Reed), and a later motion for new trial does not cure the deprivation (Morrison v. Shanwick), the premature award violated procedural due process and had to be vacated. The court lacked jurisdiction to review the Rule 59 ruling because it was entered after, and not designated in, the notice of appeal.

Why It Matters

For Arizona homeowners associations, this published decision is a strong caution against trying to undo a settlement the association itself negotiated and stipulated to. Once a court with general jurisdiction over a contract dispute enters a consent judgment, that judgment is not void merely because it grants relief the original pleadings never requested; the parties’ stipulation supplies the court’s power to act. Just as importantly, A.R.S. section 10-3304 bars a nonprofit planned-community association from later escaping its own corporate action by calling it ultra vires. The Legislature channeled power-to-act challenges into narrow paths, chiefly a suit by a member to enjoin the act or a suit by the association against its own director, officer, employee, or agent, so a board that agrees to terms it may lack authority to grant cannot simply repudiate the deal by attacking its own authority. Boards should confirm their authority before signing, because the corporate-authority defense will generally not be available to them afterward.

The opinion is equally significant on procedure. Even a party that loses on the merits is entitled to procedural due process on attorney fees, meaning a real opportunity to be heard on the reasonableness and appropriateness of a fee request before the court rules. A trial court that grants a supplemental fee application before the opponent’s response deadline runs commits reversible error, and a later motion for new trial or reconsideration does not cure it. The decision also reminds litigants that a notice of appeal must designate each order challenged, or the appellate court will lack jurisdiction to review it, and that appellate fees under A.R.S. section 12-341.01 may be denied outright where neither side completely prevails.

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Nickerson v. Green Valley Recreation, Inc.: HOA Court Case Guide

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CC&Rs & Covenants | A.R.S. §§ 33-440, 33-442, 12-341.01 | 2 CA-CV 2010-0197

In this 2011 published opinion, the Arizona Court of Appeals, Division Two, addressed a novel question and held that covenants requiring membership in and payment of dues to a recreational association touch and concern the land, are enforceable as real covenants, and are not unconscionable.

Last updated July 1, 2026. Case: Nickerson v. Green Valley Recreation, Inc.; 228 Ariz. 528, 269 P.3d 1179 (App. 2011) (2 CA-CV 2010-0197); Pima County Superior Court No. C20090082 (Hon. Paul E. Tang).

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Covenants requiring homeowners to maintain membership in, and pay dues and assessments to, a recreational association touch and concern the burdened land and are enforceable as real covenants or equitable servitudes running with the land. Such covenants are not procedurally or substantively unconscionable, nor illusory or lacking mutuality, where members retain voting rights and the association must perform for their benefit under its articles and bylaws. The Court of Appeals affirmed summary judgment for the association and affirmed the discretionary denial of the association’s trial-court attorney fees.

Case Participants

Neutral Parties

  • William G. Nickerson, et al. (Green Valley homeowners) (Appellants/Cross-Appellees)
    Group of Green Valley homeowners, most subject to the Master Deed Restriction, who challenged the enforceability of the GVR membership covenants and the new-member fee; plaintiffs below.
  • Green Valley Recreation, Inc. (GVR) (Appellee/Cross-Appellant)
    Nonprofit recreational association formed by a 1978 merger; defendant below that obtained summary judgment and cross-appealed the denial of its attorney fees.
  • Brian A. Laird (Counsel)
    Law Office of Brian Laird, PLLC
    Counsel for Plaintiffs/Appellants/Cross-Appellees (homeowners), Tucson.
  • Stephen M. Weeks (Counsel)
    Weeks Law Firm, PLLC
    Counsel for Plaintiffs/Appellants/Cross-Appellees (homeowners), Tucson.
  • Robert Mackenzie (Counsel)
    The Shiaras Law Firm, PC
    Counsel for Defendant/Appellee/Cross-Appellant Green Valley Recreation, Inc., Scottsdale.
  • John E. Droeger (Amicus Curiae)
    In Propria Persona
    Green Valley resident who is not a GVR member; appeared as amicus curiae in propria persona. The court declined to reach his horizontal-privity argument because it was not raised by the parties below.
  • Philip G. Espinosa (Judge)
    Judge of the Court of Appeals, Division Two (Department B); authored the opinion.
  • Garye L. Vásquez (Judge)
    Presiding Judge of the Court of Appeals, Division Two; concurred.
  • Peter J. Eckerstrom (Judge)
    Presiding Judge of the Court of Appeals, Division Two; concurred.
  • Paul E. Tang (Judge)
    Pima County Superior Court judge who granted summary judgment for GVR and denied both parties’ fee/post-trial requests (Cause No. C20090082).

What happened and why it matters

Homeowners across the unincorporated retirement community of Green Valley sued Green Valley Recreation, Inc. (GVR), a nonprofit recreational association formed in 1978, seeking to quiet title, obtain declaratory relief, and recover damages. They contended that recorded Master Deed Restrictions (MDR), private membership agreements, and CC&Rs compelling them to maintain GVR membership and pay its dues and assessments—including a 2000 ‘new member capital fee’—were unenforceable. The homeowners argued the covenants did not touch and concern the land, were unconscionable, and lacked mutuality of obligation. The Pima County Superior Court granted summary judgment to GVR and denied both the homeowners’ post-judgment motions and GVR’s request for attorney fees. The homeowners appealed and GVR cross-appealed the fee denial. Addressing what it described as a novel Arizona issue, the Court of Appeals, Division Two, held that covenants requiring membership in a recreational association touch and concern the burdened land and are enforceable as real covenants running with the land. The court rejected the homeowners’ unconscionability and mutuality arguments and declined to apply A.R.S. §§ 33-440 and 33-442 retroactively to covenants created before those statutes took effect. It affirmed summary judgment for GVR and, reviewing for abuse of discretion, affirmed the discretionary denial of GVR’s trial-court attorney fees, while awarding GVR its reasonable attorney fees on appeal under A.R.S. § 12-341.01.

The court first addressed the trial court’s use of its preliminary-injunction findings as ‘law of the case.’ Citing Powell-Cerkoney v. TCR-Montana Ranch, the court reaffirmed that legal conclusions reached at the preliminary-injunction stage do not constitute law of the case and do not bind the court at summary judgment. It held, however, that the homeowners had waived the point by not objecting until their motion for new trial, and that any error was harmless because the servitudes were valid on other grounds, so the trial court reached the correct result.

Turning to the central issue, the court applied the traditional four elements of a real covenant from Choisser v. Eyman and Federoff v. Pioneer Title & Trust: a writing satisfying the Statute of Frauds, intent that the covenant run with the land, a covenant that touches and concerns the land, and privity of estate. GVR urged that the touch-and-concern element had been superseded by the Restatement (Third) of Property (Servitudes) and by A.R.S. §§ 33-440 and 33-442. The court declined to resolve that question, holding those statutes could not be applied retroactively under A.R.S. § 1-244 because eliminating touch-and-concern would affect substantive rights established when the covenants were created (§ 33-440 effective September 2008; § 33-442 enacted 2010).

Applying the traditional test, the court concluded the GVR covenants do touch and concern the land: each burdened owner is entitled to the benefit of recreational facilities and services, and the homeowners offered no evidence any of them was denied those benefits. The court rejected the argument that ‘benefit’ and ‘value’ should be measured subjectively, analogized GVR membership to a community pool, and relied on out-of-state authority (Lowry, Streams Sports Club, Regency Homes, Four Seasons, Homsey) holding that mandatory recreational-association membership satisfies touch-and-concern. Because GVR offers full membership and access to owners throughout its vicinity, the absence of a single common subdivision scheme was inconsequential so long as access is not unreasonably impeded by distance. The recorded agreements and CC&Rs also showed clear intent to bind the land permanently, and the writing and privity elements were undisputed; even homeowner Guldan, whose restriction was unrecorded, was bound because he had actual notice under Federoff and A.R.S. § 33-412(B).

On unconscionability—a question of law under Maxwell v. Fidelity Financial Services—the court found neither procedural nor substantive unconscionability. There was no evidence of unfair surprise or bargaining defects; the recorded documents provided notice, and the homeowners’ claims of unequal bargaining power lacked factual support. Substantively, there was no evidence of a significant cost-price disparity, and GVR’s amendment power was tempered by its articles and bylaws, members’ voting rights, and the rule that an association may not unreasonably alter the nature of its covenants (Dreamland Villa; Shamrock). The court also rejected the illusory/mutuality argument under Gates and Carroll v. Lee, holding GVR provided consideration by being obligated to perform for its members. Finally, reviewing the fee ruling for abuse of discretion, the court upheld the trial court’s denial of GVR’s fees because it had a reasonable basis—the novel, close nature of the claims and the risk of chilling future servitude litigation—while awarding GVR its fees on appeal under A.R.S. § 12-341.01.

Nickerson is a published, precedential Division Two decision that answered what the court called a novel Arizona question: whether a recorded covenant requiring membership in, and payment of dues to, a recreational association ‘touches and concerns’ the land so that it runs with the land and binds successive owners. The court held that it does, aligning Arizona with courts in several other states and confirming that mandatory recreational-association membership can be a valid, enforceable real covenant even where the burdened homes are not all within a single subdivision and the facilities are dispersed throughout the community. The key consideration is reasonable access to the facilities from the burdened property, not a common platted scheme.

The decision also matters for how associations structure and defend their governing documents and assessments. It reinforces that unconscionability is a legal question examined at contract formation, that recorded CC&Rs and deed restrictions provide the notice needed to defeat an ‘unfair surprise’ claim, and that an association’s power to amend is not ‘unfettered’ because it is checked by its articles, bylaws, members’ voting rights, and the limit against unreasonably altering the nature of the covenants. At the same time, the court’s affirmance of the trial court’s discretionary refusal to award the prevailing association its trial-court fees—because the homeowners raised novel, close questions and fee-shifting could chill legitimate servitude litigation—illustrates that prevailing on the merits does not guarantee a fee award under A.R.S. § 12-341.01.

Step-by-step litigation record

Step 1978 Two nonprofit corporations merge to form Green Valley Recreation, Inc. (GVR).
Step 2000 After a member vote, GVR’s board amends the bylaws to impose a ‘new member capital fee’; the MDR is modified to mandate the assessment for owners of membership properties and their successors.
Step 2009-01 Homeowners sue GVR seeking to quiet title, damages, and declaratory relief, and apply for a preliminary injunction against collection and liens.
The trial court denies the preliminary injunction, ruling the MDR and agreements enforceable as equitable servitudes.
GVR moves for summary judgment on all six counts; the plaintiffs move for partial summary judgment; the court grants GVR’s motion and denies the plaintiffs’ motion for reconsideration/new trial and GVR’s request for attorney fees.
Step 2011-11-30 The Arizona Court of Appeals, Division Two, files its opinion affirming on both the appeal and the cross-appeal and awarding GVR its fees on appeal.

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Source 1 2011-11-30

Opinion

Type: Decision or judgment

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

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2011-11-30_001_opinion.pdf

FAQ

What was Nickerson v. Green Valley Recreation about?

Green Valley homeowners sued Green Valley Recreation, Inc. (GVR), a nonprofit recreational association, seeking to quiet title, obtain declaratory relief, and recover damages. They argued that recorded Master Deed Restrictions, private membership agreements, and CC&Rs requiring them to maintain GVR membership and pay its dues and assessments—including a 2000 new-member capital fee—were unenforceable. The trial court granted summary judgment to GVR, and the Court of Appeals affirmed.

What does ‘touch and concern the land’ mean, and why did it matter here?

‘Touch and concern the land’ is one of the traditional requirements for a covenant to run with the land and bind future owners; it asks whether the covenant makes the land itself more useful or valuable. The court held that requiring membership in a recreational association like GVR does touch and concern the land because each burdened owner is entitled to the benefit of the recreational facilities and services, so the covenants run with the land as enforceable real covenants.

Did A.R.S. §§ 33-440 and 33-442 decide the case?

No. GVR argued those statutes had eliminated the touch-and-concern requirement, but the court declined to decide that because the statutes could not be applied retroactively. Under A.R.S. § 1-244, statutes are not retroactive unless the legislature says so, and eliminating touch-and-concern would affect substantive rights established when the covenants were created. The covenants here predated both statutes, so the court applied the traditional common-law test instead.

Were the GVR covenants unconscionable or illusory?

No. Unconscionability is a legal question examined at contract formation. The court found no procedural unconscionability because the recorded documents gave notice and there was no evidence of unfair surprise or a bargaining defect, and no substantive unconscionability because there was no proof of a significant cost-price disparity and GVR’s amendment power was limited by its articles, bylaws, and members’ voting rights. The court also rejected the argument that the contracts were illusory or lacked mutuality, holding GVR provided consideration by being obligated to perform for its members.

Why didn’t GVR get its attorney fees for the trial-court proceedings?

GVR won on the merits but the trial court denied its request for trial-court attorney fees, and the Court of Appeals affirmed that denial as within the trial court’s discretion. The trial court reasoned that the homeowners raised novel claims with the appearance of merit, the case was close, and awarding fees could chill future litigation to determine rights in servitudes. The Court of Appeals did, however, award GVR its reasonable attorney fees on appeal under A.R.S. § 12-341.01.

Is this decision binding precedent in Arizona?

Yes. Nickerson v. Green Valley Recreation, Inc. is a published opinion of the Arizona Court of Appeals, Division Two, reported at 228 Ariz. 528, 269 P.3d 1179 (App. 2011). As a published opinion, it is precedential and may be cited as authority in Arizona.

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Case Summary

Case ID / citation228 Ariz. 528, 269 P.3d 1179 (App. 2011) (2 CA-CV 2010-0197)
Court / tribunalCourt of Appeals
Decision / key dateNovember 30, 2011
Judge / panelEspinosa, Vásquez, Eckerstrom
PartiesWilliam G. Nickerson, et al. — Green Valley homeowners (Plaintiffs/Appellants/Cross-Appellees) v. Green Valley Recreation, Inc. (Defendant/Appellee/Cross-Appellant)
Governing law
Topics
cc-and-rscovenantsassessmentsattorneys-feesprocedure
Outcome / holding

Covenants requiring homeowners to maintain membership in, and pay dues and assessments to, a recreational association touch and concern the burdened land and are enforceable as real covenants or equitable servitudes running with the land. Such covenants are not procedurally or substantively unconscionable, nor illusory or lacking mutuality, where members retain voting rights and the association must perform for their benefit under its articles and bylaws. The Court of Appeals affirmed summary judgment for the association and affirmed the discretionary denial of the association’s trial-court attorney fees.

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Key Issues & Findings

Case Summary

Homeowners across the unincorporated retirement community of Green Valley sued Green Valley Recreation, Inc. (GVR), a nonprofit recreational association formed in 1978, seeking to quiet title, obtain declaratory relief, and recover damages. They contended that recorded Master Deed Restrictions (MDR), private membership agreements, and CC&Rs compelling them to maintain GVR membership and pay its dues and assessments—including a 2000 ‘new member capital fee’—were unenforceable. The homeowners argued the covenants did not touch and concern the land, were unconscionable, and lacked mutuality of obligation. The Pima County Superior Court granted summary judgment to GVR and denied both the homeowners’ post-judgment motions and GVR’s request for attorney fees. The homeowners appealed and GVR cross-appealed the fee denial. Addressing what it described as a novel Arizona issue, the Court of Appeals, Division Two, held that covenants requiring membership in a recreational association touch and concern the burdened land and are enforceable as real covenants running with the land. The court rejected the homeowners’ unconscionability and mutuality arguments and declined to apply A.R.S. §§ 33-440 and 33-442 retroactively to covenants created before those statutes took effect. It affirmed summary judgment for GVR and, reviewing for abuse of discretion, affirmed the discretionary denial of GVR’s trial-court attorney fees, while awarding GVR its reasonable attorney fees on appeal under A.R.S. § 12-341.01.

Key Issues & Findings

The court first addressed the trial court’s use of its preliminary-injunction findings as ‘law of the case.’ Citing Powell-Cerkoney v. TCR-Montana Ranch, the court reaffirmed that legal conclusions reached at the preliminary-injunction stage do not constitute law of the case and do not bind the court at summary judgment. It held, however, that the homeowners had waived the point by not objecting until their motion for new trial, and that any error was harmless because the servitudes were valid on other grounds, so the trial court reached the correct result.

Turning to the central issue, the court applied the traditional four elements of a real covenant from Choisser v. Eyman and Federoff v. Pioneer Title & Trust: a writing satisfying the Statute of Frauds, intent that the covenant run with the land, a covenant that touches and concerns the land, and privity of estate. GVR urged that the touch-and-concern element had been superseded by the Restatement (Third) of Property (Servitudes) and by A.R.S. §§ 33-440 and 33-442. The court declined to resolve that question, holding those statutes could not be applied retroactively under A.R.S. § 1-244 because eliminating touch-and-concern would affect substantive rights established when the covenants were created (§ 33-440 effective September 2008; § 33-442 enacted 2010).

Applying the traditional test, the court concluded the GVR covenants do touch and concern the land: each burdened owner is entitled to the benefit of recreational facilities and services, and the homeowners offered no evidence any of them was denied those benefits. The court rejected the argument that ‘benefit’ and ‘value’ should be measured subjectively, analogized GVR membership to a community pool, and relied on out-of-state authority (Lowry, Streams Sports Club, Regency Homes, Four Seasons, Homsey) holding that mandatory recreational-association membership satisfies touch-and-concern. Because GVR offers full membership and access to owners throughout its vicinity, the absence of a single common subdivision scheme was inconsequential so long as access is not unreasonably impeded by distance. The recorded agreements and CC&Rs also showed clear intent to bind the land permanently, and the writing and privity elements were undisputed; even homeowner Guldan, whose restriction was unrecorded, was bound because he had actual notice under Federoff and A.R.S. § 33-412(B).

On unconscionability—a question of law under Maxwell v. Fidelity Financial Services—the court found neither procedural nor substantive unconscionability. There was no evidence of unfair surprise or bargaining defects; the recorded documents provided notice, and the homeowners’ claims of unequal bargaining power lacked factual support. Substantively, there was no evidence of a significant cost-price disparity, and GVR’s amendment power was tempered by its articles and bylaws, members’ voting rights, and the rule that an association may not unreasonably alter the nature of its covenants (Dreamland Villa; Shamrock). The court also rejected the illusory/mutuality argument under Gates and Carroll v. Lee, holding GVR provided consideration by being obligated to perform for its members. Finally, reviewing the fee ruling for abuse of discretion, the court upheld the trial court’s denial of GVR’s fees because it had a reasonable basis—the novel, close nature of the claims and the risk of chilling future servitude litigation—while awarding GVR its fees on appeal under A.R.S. § 12-341.01.

Why It Matters

Nickerson is a published, precedential Division Two decision that answered what the court called a novel Arizona question: whether a recorded covenant requiring membership in, and payment of dues to, a recreational association ‘touches and concerns’ the land so that it runs with the land and binds successive owners. The court held that it does, aligning Arizona with courts in several other states and confirming that mandatory recreational-association membership can be a valid, enforceable real covenant even where the burdened homes are not all within a single subdivision and the facilities are dispersed throughout the community. The key consideration is reasonable access to the facilities from the burdened property, not a common platted scheme.

The decision also matters for how associations structure and defend their governing documents and assessments. It reinforces that unconscionability is a legal question examined at contract formation, that recorded CC&Rs and deed restrictions provide the notice needed to defeat an ‘unfair surprise’ claim, and that an association’s power to amend is not ‘unfettered’ because it is checked by its articles, bylaws, members’ voting rights, and the limit against unreasonably altering the nature of the covenants. At the same time, the court’s affirmance of the trial court’s discretionary refusal to award the prevailing association its trial-court fees—because the homeowners raised novel, close questions and fee-shifting could chill legitimate servitude litigation—illustrates that prevailing on the merits does not guarantee a fee award under A.R.S. § 12-341.01.

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Mountain View Condominiums Homeowners Ass’n v. Scott: HOA Court Case Guide

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Arizona Court of Appeals — Condominium Assessments

Division Two holds that assessment liability in a condominium flows from ownership of the unit and its inseparable common-element interest, not from whether a structure has been built, and reverses summary judgment for the non-building owners.

Last updated July 1, 2026. Case: Mountain View Condominiums Homeowners Ass’n v. Scott; No. 2 CA-CV 93-0288; 180 Ariz. 216, 883 P.2d 453 (App. 1994).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

A condominium unit owner’s obligation to pay association assessments arises from unit ownership itself, which carries a vested, undivided interest in the common elements, and does not depend on whether improvements or structures have been constructed on the unit. Because the Declaration, the former Horizontal Property Regime Act, and the Arizona Uniform Condominium Act draw no distinction between completed and uncompleted units, the trial court’s summary judgment for the non-building defendants, including its attorneys’ fee award, is reversed and the case is remanded.

Case Participants

Neutral Parties

  • Mountain View Condominiums Homeowners Association, Inc. (dba Arbor Point Condominiums) (Party)
    Arizona nonprofit corporation and condominium association; plaintiff/appellant that sued to collect common-area assessments. Prevailed on appeal.
  • Clifford J. Scott and Valerie Scott (Party)
    Husband and wife; acquired the project’s beneficial interest after Security Savings’ foreclosure and later deeded units to the other defendants; defendants/appellees who argued no assessments were owed on unbuilt units.
  • Lawyers Title of Arizona, as Trustee under Trust No. 7518-T (Party)
    The Declarant and record titleholder of the condominium property under the Declaration; defendant/appellee.
  • Douglas R. Knoles (Party)
    A married man holding as his sole and separate property; contract purchaser of Units 69-71; defendant/appellee.
  • Superstition Homes (Party)
    Arizona corporation; contract purchaser of Units 72-76; defendant/appellee.
  • Inca Investment, Inc. (Party)
    Arizona corporation; contract purchaser of Units 22-68; defendant/appellee.
  • Tanis A. Duncan (Counsel)
    Counsel for plaintiff/appellant, the Association (Tucson). No law firm was listed in the reporter.
  • Dan L. Dudley (Counsel)
    Counsel for defendants/appellees (Tucson). No law firm was listed in the reporter.
  • Judge Lacagnina (Judge)
    Arizona Court of Appeals, Division 2, Department A
    Authored the opinion of the court.
  • Presiding Judge Livermore (Judge)
    Arizona Court of Appeals, Division 2, Department A
    Concurred in the decision.
  • Judge Fernandez (Judge)
    Arizona Court of Appeals, Division 2, Department A
    Concurred in the decision.

What happened and why it matters

Mountain View Condominiums Homeowners Association, doing business as Arbor Point Condominiums, sued Clifford and Valerie Scott, Lawyers Title of Arizona (as trustee and Declarant), Douglas Knoles, Superstition Homes, and Inca Investment to collect common-area assessments on condominium units on which no buildings had been constructed. The complex was created in 1984 under the Horizontal Property Regime Act, when a Declaration of CC&Rs was recorded and a plat divided the land into 76 units plus common areas. After a foreclosure and a series of deeds, the defendants held Units 22 through 76. They argued they owed no assessments because their units were still vacant land with no improvements, and the trial court agreed, granting them summary judgment and attorneys’ fees on the theory that the Declaration contemplated an erected structure before assessment liability arose. The Arizona Court of Appeals, Division Two, reversed. Reading the statute, the Declaration, and the bylaws together, the court held that a condominium unit is defined as airspace carrying a vested, undivided interest in the common elements, and that ownership of that interest, not the completion of a building, triggers the duty to pay assessments. Nothing in the Declaration, the former Horizontal Property Regime Act, or the Arizona Uniform Condominium Act distinguished completed from uncompleted units for assessment purposes. The court reversed the judgment and the fee award, remanded for entry of judgment for the Association and a determination of the amounts owed, and awarded the Association its appellate attorneys’ fees.

The court framed the sole question as whether a condominium unit owner must pay assessments when no improvements have been built on the unit, and answered yes. It began with the settled rule that the rights and obligations of condominium owners regarding the common elements come from three sources, the statute, the declaration, and the bylaws, which must be read together and harmonized where possible (citing American Savings Service Corp. v. Selby, Sun-Air Estates v. Manzari, and A.R.S. section 33-1201(B)). Because the property had been submitted to a horizontal property regime under former A.R.S. sections 33-551 to 33-561, the court explained that Arizona condominium ownership consists of individual ownership of a horizontal layer of cubic airspace subject to exclusive control, together with a fractional interest held in common in the common elements (Makeever v. Lyle). The defendants’ undivided Common Area interest was appurtenant to each unit, could not be severed, and was vested as a separate parcel of real property.

Turning to the documents, the court found nothing in the Declaration distinguishing owners of completed units from owners of uncompleted ones. Because an Arizona condominium owner owns only airspace and not the underlying land, the Declaration necessarily describes a unit by physical boundaries to mark the line between the owner’s exclusive area and the common area; that boundary description does not require a structure to exist before someone becomes a unit owner obligated to pay. The bylaws and Articles of Incorporation reinforced this by defining an owner as one holding fee simple to any unit (including contract purchasers) and a member as any unit owner, all obligated to pay assessments without reference to construction.

The court then rejected the argument that the Arizona Uniform Condominium Act applied only to condominiums created after January 1, 1986, holding that section 33-1201(B) extends the Act to earlier condominiums where not in conflict. Both the former Horizontal Property Regime Act, which defined a building as the principal structure “erected or to be erected,” and the Uniform Condominium Act assess against units by percentage interest in the common elements and draw no line between finished and unfinished units. The court found persuasive Bradley v. Mullenix, which reasoned that common expenses like landscaping, snow removal, and exterior upkeep accrue regardless of whether a unit is completed. It also noted that section 33-1255(F) permits only a limited reduction (to not less than twenty-five percent) of a declarant’s assessment on units not substantially completed, and only if the declaration so provides; absent such an amendment, the defendants owed the full assessment. Concluding that the defendants took the benefits and burdens of prior ownership, including the continuing duty to pay assessments, and that treating them otherwise would produce the absurd result of membership benefits without obligations, the court reversed the summary judgment and fee award and remanded.

This published Division Two decision establishes a foundational Arizona rule that assessment liability in a condominium flows from ownership of the unit and its inseparable undivided interest in the common elements, not from whether a building has been constructed. For associations and boards, it confirms that owners of vacant or unbuilt condominium lots cannot escape common-area assessments by pointing to the absence of improvements; the grass still grows, the roads and shared systems still deteriorate, and every unit owner shares those costs in proportion to the interest fixed by the recorded documents. The opinion reads the declaration, bylaws, articles, and the governing statutes as a harmonized whole, a method that continues to guide Arizona courts interpreting community documents.

For developers, contract purchasers, and investors who acquire undeveloped condominium units, the case is a caution that taking title carries the previous owner’s continuing assessment obligations, without interruption, from the moment assessments commence. It also clarifies that the Arizona Uniform Condominium Act reaches condominiums created before its 1986 effective date where it does not conflict with the older Horizontal Property Regime Act or the recorded documents, and that the only relief for unbuilt units is the narrow statutory reduction under A.R.S. section 33-1255(F), which applies solely to declarants and only if the declaration provides for it. The reversal of the fee award further signals that a party who prevails at trial on an erroneous reading of the documents can lose both the judgment and its fees on appeal.

Step-by-step litigation record

Step 1984 Mountain View Condominiums is created under the Horizontal Property Regime Act; the Declaration of CC&Rs is recorded and a plat subdivides the land into 76 units and Common Areas A, B, C, and D, with title held by Lawyers Title of Arizona as trustee.
Step 1991-10-31 Security Savings forecloses and deeds the project’s beneficial interest, originally held by Roger Mountain Limited Partnership, to C.J. Scott.
Step 1993-04-21 Scott and Lawyers Title deed Units 22-76 to Inca Investment, Inc. (Units 22-68), Douglas R. Knoles (Units 69-71), and Superstition Homes (Units 72-76) under contracts for sale.
Step 1993 The Association sues the defendants to collect common-area assessments; on cross-motions for summary judgment, the trial court rules for the defendants and awards them attorneys’ fees (No. 2 CA-CV 93-0288 on appeal).
Step 1994-08-25 The Arizona Court of Appeals, Division Two, reverses the summary judgment and fee award, remands for judgment in favor of the Association, and awards the Association its appellate attorneys’ fees.

FAQ

What was Mountain View Condominiums v. Scott about?

A condominium homeowners association, doing business as Arbor Point Condominiums, sued the owners of several units on which no buildings had been constructed to collect common-area assessments. The owners argued they owed nothing because their units were still vacant land. The Arizona Court of Appeals had to decide whether a unit owner must pay assessments when no improvements have been built on the unit.

Do you have to pay HOA or condominium assessments on a lot with no building on it?

Yes, under this decision. The court held that a condominium unit is defined as airspace carrying a vested, undivided interest in the common elements, and that the obligation to pay assessments arises from owning the unit and that interest, not from completing a structure. Because nothing in the declaration or the governing statutes distinguished built from unbuilt units, the owners of the vacant units still owed the full assessments.

Why did the trial court rule for the owners, and why was it reversed?

The trial court read the recorded declarations as defining a “unit” and the duty to pay assessments in a way that assumed an erected structure, so it concluded that owners who had not built owed nothing. The Court of Appeals reversed, explaining that a condominium owner in Arizona owns only airspace, so the declaration necessarily describes a unit by boundaries rather than by an existing building, and that duty to pay assessments does not depend on construction.

Does the Arizona Uniform Condominium Act apply to condominiums created before 1986?

Yes, in part. The court rejected the argument that the Act applies only to condominiums created after its January 1, 1986 effective date. Under A.R.S. section 33-1201(B), the Act also applies to condominiums created earlier, to the extent its provisions do not conflict with the former Horizontal Property Regime Act or with the declarations, bylaws, or plats adopted under the older law.

Is there any reduction in assessments for units that are not yet built?

Only a narrow one. A.R.S. section 33-1255(F) allows a reduction of a declarant’s assessment obligation, if the declaration so provides, for any unit on which construction has not been substantially completed, but not below twenty-five percent of the assessment for substantially completed units. Because the declaration here contained no such provision and the defendants were treated as ordinary unit owners, they owed the full amount.

Is this decision binding precedent in Arizona?

Yes. This is a published opinion of the Arizona Court of Appeals, Division Two, reported at 180 Ariz. 216, 883 P.2d 453 (App. 1994). As a published appellate decision it is binding precedent on the question it decides, unlike an unpublished memorandum decision, which does not create precedent.

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 93-0288; 180 Ariz. 216, 883 P.2d 453 (App. 1994)
Court / tribunalCourt of Appeals
Decision / key dateAugust 25, 1994
Judge / panelLacagnina, J. (author), Livermore, P.J., Fernandez, J.
PartiesA condominium homeowners association (Mountain View Condominiums Homeowners Association, dba Arbor Point Condominiums) sued the owners of undeveloped units (Clifford and Valerie Scott, Lawyers Title of Arizona as trustee, Douglas Knoles, Superstition Homes, and Inca Investment) to collect common-area assessments; the owners argued they owed nothing because no buildings had been constructed on their units.
Governing law
Topics
assessmentscc-and-rscovenantsattorneys-feesprocedure
Outcome / holding

A condominium unit owner’s obligation to pay association assessments arises from unit ownership itself, which carries a vested, undivided interest in the common elements, and does not depend on whether improvements or structures have been constructed on the unit. Because the Declaration, the former Horizontal Property Regime Act, and the Arizona Uniform Condominium Act draw no distinction between completed and uncompleted units, the trial court’s summary judgment for the non-building defendants, including its attorneys’ fee award, is reversed and the case is remanded.

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Parties, Court, and Research Coverage

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Study / briefing material1 section
FAQ / homeowner questions6 questions
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Key Issues & Findings

Case Summary

Mountain View Condominiums Homeowners Association, doing business as Arbor Point Condominiums, sued Clifford and Valerie Scott, Lawyers Title of Arizona (as trustee and Declarant), Douglas Knoles, Superstition Homes, and Inca Investment to collect common-area assessments on condominium units on which no buildings had been constructed. The complex was created in 1984 under the Horizontal Property Regime Act, when a Declaration of CC&Rs was recorded and a plat divided the land into 76 units plus common areas. After a foreclosure and a series of deeds, the defendants held Units 22 through 76. They argued they owed no assessments because their units were still vacant land with no improvements, and the trial court agreed, granting them summary judgment and attorneys’ fees on the theory that the Declaration contemplated an erected structure before assessment liability arose. The Arizona Court of Appeals, Division Two, reversed. Reading the statute, the Declaration, and the bylaws together, the court held that a condominium unit is defined as airspace carrying a vested, undivided interest in the common elements, and that ownership of that interest, not the completion of a building, triggers the duty to pay assessments. Nothing in the Declaration, the former Horizontal Property Regime Act, or the Arizona Uniform Condominium Act distinguished completed from uncompleted units for assessment purposes. The court reversed the judgment and the fee award, remanded for entry of judgment for the Association and a determination of the amounts owed, and awarded the Association its appellate attorneys’ fees.

Key Issues & Findings

The court framed the sole question as whether a condominium unit owner must pay assessments when no improvements have been built on the unit, and answered yes. It began with the settled rule that the rights and obligations of condominium owners regarding the common elements come from three sources, the statute, the declaration, and the bylaws, which must be read together and harmonized where possible (citing American Savings Service Corp. v. Selby, Sun-Air Estates v. Manzari, and A.R.S. section 33-1201(B)). Because the property had been submitted to a horizontal property regime under former A.R.S. sections 33-551 to 33-561, the court explained that Arizona condominium ownership consists of individual ownership of a horizontal layer of cubic airspace subject to exclusive control, together with a fractional interest held in common in the common elements (Makeever v. Lyle). The defendants’ undivided Common Area interest was appurtenant to each unit, could not be severed, and was vested as a separate parcel of real property.

Turning to the documents, the court found nothing in the Declaration distinguishing owners of completed units from owners of uncompleted ones. Because an Arizona condominium owner owns only airspace and not the underlying land, the Declaration necessarily describes a unit by physical boundaries to mark the line between the owner’s exclusive area and the common area; that boundary description does not require a structure to exist before someone becomes a unit owner obligated to pay. The bylaws and Articles of Incorporation reinforced this by defining an owner as one holding fee simple to any unit (including contract purchasers) and a member as any unit owner, all obligated to pay assessments without reference to construction.

The court then rejected the argument that the Arizona Uniform Condominium Act applied only to condominiums created after January 1, 1986, holding that section 33-1201(B) extends the Act to earlier condominiums where not in conflict. Both the former Horizontal Property Regime Act, which defined a building as the principal structure “erected or to be erected,” and the Uniform Condominium Act assess against units by percentage interest in the common elements and draw no line between finished and unfinished units. The court found persuasive Bradley v. Mullenix, which reasoned that common expenses like landscaping, snow removal, and exterior upkeep accrue regardless of whether a unit is completed. It also noted that section 33-1255(F) permits only a limited reduction (to not less than twenty-five percent) of a declarant’s assessment on units not substantially completed, and only if the declaration so provides; absent such an amendment, the defendants owed the full assessment. Concluding that the defendants took the benefits and burdens of prior ownership, including the continuing duty to pay assessments, and that treating them otherwise would produce the absurd result of membership benefits without obligations, the court reversed the summary judgment and fee award and remanded.

Why It Matters

This published Division Two decision establishes a foundational Arizona rule that assessment liability in a condominium flows from ownership of the unit and its inseparable undivided interest in the common elements, not from whether a building has been constructed. For associations and boards, it confirms that owners of vacant or unbuilt condominium lots cannot escape common-area assessments by pointing to the absence of improvements; the grass still grows, the roads and shared systems still deteriorate, and every unit owner shares those costs in proportion to the interest fixed by the recorded documents. The opinion reads the declaration, bylaws, articles, and the governing statutes as a harmonized whole, a method that continues to guide Arizona courts interpreting community documents.

For developers, contract purchasers, and investors who acquire undeveloped condominium units, the case is a caution that taking title carries the previous owner’s continuing assessment obligations, without interruption, from the moment assessments commence. It also clarifies that the Arizona Uniform Condominium Act reaches condominiums created before its 1986 effective date where it does not conflict with the older Horizontal Property Regime Act or the recorded documents, and that the only relief for unbuilt units is the narrow statutory reduction under A.R.S. section 33-1255(F), which applies solely to declarants and only if the declaration provides for it. The reversal of the fee award further signals that a party who prevails at trial on an erroneous reading of the documents can lose both the judgment and its fees on appeal.

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La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona: HOA Court Case Guide

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CC&R Amendment | Riley v. Boyle | 2 CA-CIV 5001

Division Two holds that an amendment to a subdivision’s restrictive covenants must apply uniformly to all lots, and that a unilateral plat revision without the required 90% owner approval is void.

Last updated July 1, 2026. Case: La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona; 142 Ariz. 235, 689 P.2d 178 (App. 1984).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

An amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or alters the CC&Rs as to only part of the lots is null and void. Because the recorded plat was incorporated into the Declaration, a unilateral plat revision without the Declaration’s required 90 percent owner approval was likewise an invalid attempt to amend the CC&Rs.

Case Participants

Neutral Parties

  • La Esperanza Townhome Association, Inc. (Appellant)
    Arizona non-profit corporation and plaintiff; the townhome owners’ association that sued to void the 1975 amendment and the 1980 plat revision. Prevailed on appeal.
  • Title Security Agency of Arizona (Appellee)
    Defendant sued in its capacity as trustee under Trust T-285; owned 50 percent of the lots and recorded the 1980 revised plat.
  • Lyman E. Ostlund (Appellee)
    Defendant who acquired 15 lots, three garages, and the common area and sought to develop the south 223 feet commercially before conveying to Title Security as trustee.
  • Steven Weatherspoon (Counsel)
    Chandler, Tullar, Udall & Redhair
    Tucson counsel for plaintiff/appellant La Esperanza Townhome Association, Inc.
  • Tom Slutes (Counsel)
    Slutes, Sakrison, Grant & Pelander, P.C.
    Tucson counsel for defendants/appellees Title Security Agency of Arizona and Lyman E. Ostlund.
  • Howard (Judge)
    Judge of the Arizona Court of Appeals, Division Two; authored the opinion.
  • Birdsall (Judge)
    Chief Judge of the Arizona Court of Appeals, Division Two; concurred.
  • Hathaway (Judge)
    Judge of the Arizona Court of Appeals, Division Two; concurred.

What happened and why it matters

La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona is a 1984 published decision of the Arizona Court of Appeals, Division Two, addressing how a recorded subdivision Declaration of Covenants, Conditions and Restrictions (CC&Rs) may be amended. The La Esperanza townhome subdivision in Tucson was created in 1973, when the developers subdivided the land, recorded a Declaration covering lots 1 through 35, and recorded a subdivision plat. The Declaration allowed amendment only by an instrument signed by at least 90 percent of the lot owners during its first 25 years. In 1975, the developers directed the title trustee to record an amendment excluding the southerly 223 feet of the subdivision, the portion fronting East Broadway, so it could be developed for multiple-unit and commercial use. In 1980, a successor trustee, Title Security, then holding 50 percent of the lots, unilaterally recorded a revised plat that resubdivided that area. The association sued to have both the amendment and the plat revision declared void; the trial court instead ruled for the defendants and upheld them. The Court of Appeals reversed, holding that an amendment to restrictive covenants must apply uniformly to all lots in the subdivision, and that both the non-uniform 1975 amendment and the unilateral 1980 plat revision, which lacked the required 90 percent owner approval, were null and void.

The court reviewed the trial court’s judgment upholding the 1975 amendment and the 1980 plat revision and reversed. On the amendment, the court noted there was a question below about whether it had been signed by the required number of landowners, but held that the case turned on a more fundamental point: the amendment purported to affect only part of the lots in the subdivision. Relying on Riley v. Boyle, 6 Ariz. App. 523, 434 P.2d 525 (1967), the court reaffirmed that any amendment to a set of restrictive covenants must have uniform application to all lots, and that an amendment purporting to modify the restrictions as to one lot or some lots, but not all, is null and void. The court quoted Riley’s reasoning that the power to amend extends only to restrictions for all lots, and that a contrary reading could produce a “patchwork quilt” of different restrictions that would upset the orderly plan of the subdivision.

The court reinforced this conclusion with out-of-state authority reaching the same result, including Montoya v. Barreras (N.M. 1970), Lakeshore Estates Recreational Area, Inc. v. Turner (Mo. App. 1972), Ridge Park Home-Owners v. Pena (N.M. 1975), and Cowherd Development Co. v. Littick (Mo. 1951), each holding that a subset of owners cannot release or alter restrictions on selected lots absent a clear provision allowing it. The court acknowledged that if all landowners join in an amendment it need not have uniform effect (Steve Vogli Co. v. Lane), but found that the La Esperanza Declaration permitted only uniform changes. It rejected the defendants’ argument that releasing the south 223 feet from all covenants (rather than just one) was a meaningful distinction, calling it “a distinction without a difference.”

The court also rejected the defendants’ reliance and estoppel defenses. Because the 1975 amendment was null and void, it never became effective; purchasers who bought after 1975 took subject to a void document, and their purchase did not validate it. The court found Ostlund could not claim detrimental reliance because the amendment, changing restrictions on only part of the subdivision, raised a “red flag” that reasonable investigation would have shown to be invalid. Finally, because the original plat (Book 25, page 1) had been incorporated into the Declaration, Ostlund’s recording of a new plat was itself an attempt to amend the Declaration; without an instrument signed by 90 percent of the lot owners, the new plat was invalid, and the estoppel claim failed because the association learned of the plan only after the revised plat was filed and most funds were spent.

This decision is a foundational Arizona statement of the uniformity principle in restrictive-covenant and CC&R law: a subset of owners generally cannot amend a subdivision’s covenants to relieve only some lots from restrictions while leaving the rest bound. The rule protects the mutual, reciprocal expectations that owners acquire when they buy into a common plan, and it prevents a controlling owner or developer from carving out favored parcels for uses (here, multi-unit and commercial development) that the recorded scheme did not allow. Even where the governing document sets a supermajority threshold, an amendment that is non-uniform in application can fail regardless of how many owners sign it.

The case also illustrates two practical points that continue to matter for community associations, developers, and buyers. First, a recorded subdivision plat that is incorporated into a declaration cannot be revised unilaterally; changing it requires the same owner approval the declaration demands for any amendment. Second, an instrument that appears in the public record is not necessarily valid: a void amendment never takes effect, later purchasers take subject to its invalidity rather than curing it, and an irregularity that changes restrictions on only part of a subdivision should put a prospective developer on notice to investigate before spending money in reliance on it.

Step-by-step litigation record

Step 1973 Tom Kennedy and his wife purchased Tucson land fronting East Broadway from Ted Bloodworth, subdivided it into townhouse lots, and recorded the La Esperanza Declaration of CC&Rs (lots 1 through 35, plat Book 25, page 1) with Stewart Title and Trust as trustee.
Step 1975 Facing financial difficulty, the Kennedys directed Stewart Title to record an amendment excluding the southerly 223 feet from the Declaration; at that time Stewart Title owned 22 of 30 lots, the Kennedys 4, and third parties 4. Lot 6 was conveyed to the Bakers; the Bakers and the lot 17 owners later signed affidavits ratifying the amendment.
Step 1980-02 After the property passed from Bloodworth to Beck and Marshall and then to Ostlund (15 lots, 3 garages, and the common area), Ostlund conveyed those interests to Title Security Agency of Arizona, as trustee under Trust T-285.
Step 1980-05 Title Security, then owning 50 percent of the lots, unilaterally recorded a revised plat resubdividing the property, eliminating the seven townhome lots in the south 223 feet (converting the area to Block 1) and replacing eight eastern lots with nine.
The La Esperanza Townhome Association sued to void the amendment and plat revision; the defendants counterclaimed for validity. The trial court, sitting without a jury, dismissed the complaint and ruled for the defendants.
Step 1984-05-24 The Arizona Court of Appeals, Division Two, reversed, holding the 1975 amendment and the 1980 plat revision null and void and directing entry of judgment for the association.
Step 1984-10-10 The Arizona Supreme Court denied review.

FAQ

What was La Esperanza Townhome Association v. Title Security about?

It concerned a Tucson townhome subdivision, La Esperanza, and whether two changes to its recorded governing documents were valid: a 1975 amendment that excluded the southerly 223 feet of the subdivision from the Declaration of CC&Rs so that area could be developed for multiple-unit and commercial use, and a 1980 plat revision recorded by a successor trustee that resubdivided the same area. The townhome association sued to have both declared null and void.

What did the Arizona Court of Appeals decide?

The court reversed the trial court and held that both the 1975 amendment and the 1980 plat revision were null and void. The key reason was that an amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or changes restrictions on only part of the lots is invalid. The court directed the trial court to enter judgment for the association.

Why can’t a subdivision’s covenants be amended for only some lots?

Following Riley v. Boyle, the court explained that restrictions apply to all lots in a subdivision, so the power to amend them extends only to changes affecting all lots. Allowing a group of owners to exempt selected lots would create, in the court’s words, a “patchwork quilt” of different restrictions and upset the subdivision’s orderly plan. The court noted an exception: if every landowner joins in an amendment, it need not have a uniform effect.

Why was the 1980 revised plat also invalid?

The original subdivision plat had been incorporated into the Declaration of CC&Rs. Because the plat was part of the Declaration, recording a new plat was effectively an attempt to amend the Declaration. That required an instrument signed by at least 90 percent of the lot owners. Since Title Security owned only 50 percent of the lots and acted unilaterally, the revised plat was an invalid amendment.

Did it matter that the buyers purchased after the 1975 amendment was recorded?

No. The court held that a void amendment never becomes effective, so owners who bought after 1975 took their lots subject to the void amendment, and their purchase did not validate it. The court also rejected a detrimental-reliance argument, reasoning that an amendment changing restrictions on only part of a subdivision raised a “red flag” that reasonable investigation would have shown to be invalid.

Why does this 1984 decision still matter for HOAs and homeowners?

It is a foundational Arizona statement that a subset of owners generally cannot amend covenants to relieve only some lots from restrictions, protecting the mutual expectations owners acquire under a common plan. It also confirms that a recorded plat incorporated into a declaration cannot be changed unilaterally, and that an instrument appearing in the public record is not necessarily valid, points that remain relevant to associations, developers, and buyers reviewing title.

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 / citation142 Ariz. 235, 689 P.2d 178 (App. 1984)
Court / tribunalCourt of Appeals
Decision / key dateMay 24, 1984
Judge / panelHoward (Judge, author), Birdsall (Chief Judge), Hathaway (Judge)
PartiesLa Esperanza Townhome Association, Inc. (Plaintiff/Appellant) v. Title Security Agency of Arizona, as Trustee under Trust T-285, and Lyman E. Ostlund (Defendants/Appellees)
Topics
cc-and-rscovenants
Outcome / holding

An amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or alters the CC&Rs as to only part of the lots is null and void. Because the recorded plat was incorporated into the Declaration, a unilateral plat revision without the Declaration’s required 90 percent owner approval was likewise an invalid attempt to amend the CC&Rs.

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

La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona is a 1984 published decision of the Arizona Court of Appeals, Division Two, addressing how a recorded subdivision Declaration of Covenants, Conditions and Restrictions (CC&Rs) may be amended. The La Esperanza townhome subdivision in Tucson was created in 1973, when the developers subdivided the land, recorded a Declaration covering lots 1 through 35, and recorded a subdivision plat. The Declaration allowed amendment only by an instrument signed by at least 90 percent of the lot owners during its first 25 years. In 1975, the developers directed the title trustee to record an amendment excluding the southerly 223 feet of the subdivision, the portion fronting East Broadway, so it could be developed for multiple-unit and commercial use. In 1980, a successor trustee, Title Security, then holding 50 percent of the lots, unilaterally recorded a revised plat that resubdivided that area. The association sued to have both the amendment and the plat revision declared void; the trial court instead ruled for the defendants and upheld them. The Court of Appeals reversed, holding that an amendment to restrictive covenants must apply uniformly to all lots in the subdivision, and that both the non-uniform 1975 amendment and the unilateral 1980 plat revision, which lacked the required 90 percent owner approval, were null and void.

Key Issues & Findings

The court reviewed the trial court’s judgment upholding the 1975 amendment and the 1980 plat revision and reversed. On the amendment, the court noted there was a question below about whether it had been signed by the required number of landowners, but held that the case turned on a more fundamental point: the amendment purported to affect only part of the lots in the subdivision. Relying on Riley v. Boyle, 6 Ariz. App. 523, 434 P.2d 525 (1967), the court reaffirmed that any amendment to a set of restrictive covenants must have uniform application to all lots, and that an amendment purporting to modify the restrictions as to one lot or some lots, but not all, is null and void. The court quoted Riley’s reasoning that the power to amend extends only to restrictions for all lots, and that a contrary reading could produce a “patchwork quilt” of different restrictions that would upset the orderly plan of the subdivision.

The court reinforced this conclusion with out-of-state authority reaching the same result, including Montoya v. Barreras (N.M. 1970), Lakeshore Estates Recreational Area, Inc. v. Turner (Mo. App. 1972), Ridge Park Home-Owners v. Pena (N.M. 1975), and Cowherd Development Co. v. Littick (Mo. 1951), each holding that a subset of owners cannot release or alter restrictions on selected lots absent a clear provision allowing it. The court acknowledged that if all landowners join in an amendment it need not have uniform effect (Steve Vogli Co. v. Lane), but found that the La Esperanza Declaration permitted only uniform changes. It rejected the defendants’ argument that releasing the south 223 feet from all covenants (rather than just one) was a meaningful distinction, calling it “a distinction without a difference.”

The court also rejected the defendants’ reliance and estoppel defenses. Because the 1975 amendment was null and void, it never became effective; purchasers who bought after 1975 took subject to a void document, and their purchase did not validate it. The court found Ostlund could not claim detrimental reliance because the amendment, changing restrictions on only part of the subdivision, raised a “red flag” that reasonable investigation would have shown to be invalid. Finally, because the original plat (Book 25, page 1) had been incorporated into the Declaration, Ostlund’s recording of a new plat was itself an attempt to amend the Declaration; without an instrument signed by 90 percent of the lot owners, the new plat was invalid, and the estoppel claim failed because the association learned of the plan only after the revised plat was filed and most funds were spent.

Why It Matters

This decision is a foundational Arizona statement of the uniformity principle in restrictive-covenant and CC&R law: a subset of owners generally cannot amend a subdivision’s covenants to relieve only some lots from restrictions while leaving the rest bound. The rule protects the mutual, reciprocal expectations that owners acquire when they buy into a common plan, and it prevents a controlling owner or developer from carving out favored parcels for uses (here, multi-unit and commercial development) that the recorded scheme did not allow. Even where the governing document sets a supermajority threshold, an amendment that is non-uniform in application can fail regardless of how many owners sign it.

The case also illustrates two practical points that continue to matter for community associations, developers, and buyers. First, a recorded subdivision plat that is incorporated into a declaration cannot be revised unilaterally; changing it requires the same owner approval the declaration demands for any amendment. Second, an instrument that appears in the public record is not necessarily valid: a void amendment never takes effect, later purchasers take subject to its invalidity rather than curing it, and an irregularity that changes restrictions on only part of a subdivision should put a prospective developer on notice to investigate before spending money in reliance on it.

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Cropley v. Recreation Centers of Sun City, Inc.: HOA Court Case Guide

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Assessments & CC&Rs | A.R.S. §§ 33-440, 12-341.01 | 1 CA-CV 10-0034

How nearly thirty years of acquiescence locked in a 1979 lake-maintenance assessment formula, and why a recorded 1969 Declaration burdened a contiguous condominium tract.

Last updated July 1, 2026. Case: Cropley v. Recreation Centers of Sun City, Inc.; 1 CA-CV 10-0034; CV2009-004740.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement through nearly thirty years of knowing acquiescence, and the agreement — enforceable as a settlement of a bona fide dispute — prospectively governs the allocation of Viewpoint Lake maintenance assessments for the same duration as the underlying 1969 Declaration and is not barred by A.R.S. section 33-440. The recorded 1969 Declaration of Restrictions runs with and burdens El Dorado’s contiguous condominium land because it gave constructive notice to anyone tracing title, and the class plaintiffs are awarded their reasonable appellate attorneys’ fees under A.R.S. section 12-341.01.

Case Participants

Neutral Parties

  • Beryl Cropley (Plaintiff)
    Lead named plaintiff/appellee; one of six Viewpoint Lake homeowners (with Marcia File, Gerald A. Klaus, Charles Lester, Nadine E. Meis, and Nancy Q. Shovlain) who brought the class action.
  • Viewpoint Lake Homeowners (certified class) (Plaintiff)
    Certified class of the owners of the eighty-one lakefront properties around Viewpoint Lake seeking to enforce the 1979 assessment agreement.
  • Recreation Centers of Sun City, Inc. (Defendant)
    Arizona non-profit corporation that owns Viewpoint Lake and nearby golf courses; defendant/appellant against the class and defendant/appellee as to El Dorado’s intervention.
  • El Dorado of Sun City Condominiums Homeowners Association (Intervenor)
    Arizona nonprofit condominium association that intervened, arguing the 1969 Declaration did not burden its Tract C property; intervening plaintiff/appellant.
  • Jeffrey A. Bernick (Counsel)
    Ridenour, Hienton & Lewis, P.L.L.C.
    Counsel for defendant/appellant Recreation Centers of Sun City, Inc. (Phoenix).
  • Scott S. Wakefield (Counsel)
    Ridenour, Hienton & Lewis, P.L.L.C.
    Counsel for defendant/appellant Recreation Centers of Sun City, Inc. (Phoenix).
  • Burton T. Cohen (Counsel)
    Burton T. Cohen, P.C.
    Counsel for intervening plaintiff/appellant El Dorado of Sun City Condominiums Homeowners Association (Scottsdale).
  • Nancy A. Mangone (Counsel)
    The Mangone Law Firm, P.C.
    Counsel for the plaintiffs/appellees, the Viewpoint Lake homeowners class (Phoenix).
  • Sheldon H. Weisberg (Judge)
    Court of Appeals judge; authored the memorandum decision.
  • Philip Hall (Judge)
    Presiding Judge on the Court of Appeals panel; concurred.
  • Diane M. Johnsen (Judge)
    Judge on the Court of Appeals panel; concurred.
  • Edward O. Burke (Judge)
    Maricopa County Superior Court judge who entered the summary judgments (No. CV2009-004740).

What happened and why it matters

Viewpoint Lake sits in Sun City, Arizona, ringed by eighty-one single-family lots, the El Dorado of Sun City Condominiums, a recreation center, and a medical facility. A 1969 recorded Declaration of Restrictions made lake maintenance the responsibility of the surrounding lakefront owners but never specified how those costs should be split. After Recreation Centers of Sun City, Inc. took title to the lake and nearby golf courses in 1975 and agreed to pay half of maintenance, disputes arose over the rest. In 1979, Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association signed an unrecorded agreement setting a $95 per-lot fee adjusted annually by the Consumer Price Index, and the parties followed that formula for nearly thirty years. In late 2008, Recreation Centers announced it would reduce its funding and proposed a lakeshore-frontage formula that more than tripled homeowner assessments. Six owners filed a certified class action, and El Dorado intervened, arguing the 1969 Declaration did not burden its condominium tract. The superior court granted summary judgment for the class and for Recreation Centers against El Dorado. On appeal, Division One of the Arizona Court of Appeals affirmed. It held that Recreation Centers had waived any challenge to the 1979 Agreement through decades of acquiescence, that A.R.S. section 33-440 did not invalidate the agreement, that the agreement lasted as long as the 1969 Declaration, and that the recorded 1969 Declaration burdened El Dorado’s contiguous land. The court awarded the class its appellate attorneys’ fees. This is an unpublished memorandum decision and is not precedent.

Reviewing the summary judgments de novo, the court declined to resolve whether the 1979 Agreement was a substantive amendment to the 1969 Declaration that would have required the majority owner vote prescribed for amendments. It instead affirmed on the alternative ground that Recreation Centers had waived any right to challenge the agreement’s validity. Waiver is the intentional relinquishment of a known right, and a party’s persistent failure to object to conduct under a covenant can result in waiver or abandonment of the restriction. Here Recreation Centers had knowingly performed under the 1979 Agreement for nearly thirty years — paying its share and accepting the CPI-based allocation without objection — so no remand for factfinding was necessary. The court reinforced this with the contract principle that a course of performance accepted or acquiesced in without objection is given great weight in interpreting an agreement (Abrams v. Horizon Corp.; Restatement (Second) of Contracts section 202(4)).

The court next rejected Recreation Centers’ argument that A.R.S. section 33-440, governing private covenants, precluded the 1979 Agreement. Because no statute is retroactive unless expressly declared (A.R.S. section 1-244) and section 33-440 took effect on September 26, 2008, the statute did not control a 1979 agreement. Even assuming it applied, the court found no conflict: the 1979 Agreement is a private covenant affecting real property under section 33-440(C)(2) and is expressly validated by section 33-440(A)(1), which recognizes pre-statute covenants and precludes only later covenants inconsistent with them. The court also declined to read section 33-440 as limited to planned communities; although declaration is defined by reference to the Planned Communities Act (section 33-1802), the separate definition of private covenant is not so limited.

Interpreting the 1979 Agreement as a question of law, the court held it was a binding settlement of a bona fide dispute rather than a terminable-at-will, short-term arrangement. The agreement adjusted assessments for any succeeding year, incorporated a Consumer Price Index escalator showing the parties contemplated future increases, and rested on the 1969 Declaration, which itself ran for thirty years with automatic ten-year renewals; the court therefore tied the agreement’s duration to that of the Declaration. The court also rejected the contention that the Viewpoint Lake Homeowners Association lacked legal capacity: a party that deals with an association as an entity and accepts value from it is estopped from later denying its capacity to contract, and nothing in the Declaration gave the Management Board the exclusive power to allocate maintenance costs.

Finally, the court held the recorded 1969 Declaration burdened El Dorado’s Tract C property. It refused to read the Declaration’s reference to future deed language as a condition precedent to imposing the burden absent clear and unequivocal language, and it found the Declaration satisfied the statute of frauds because it identified the burdened estate — Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it — with sufficient certainty. Because Del Webb owned both tracts in 1969 and the 1971 amendment confirmed Tract C’s contiguity, anyone tracing title would have constructive notice that the Declaration encumbered Tract C from the moment of its execution.

For Arizona homeowners and associations, this decision illustrates how a long-standing course of conduct can lock in a cost-sharing arrangement even when the original governing documents are silent or arguably require a formal amendment. Recreation Centers could not escape the 1979 assessment formula it had followed for three decades: by knowingly performing under the agreement year after year, it waived any argument that the agreement was an invalid amendment or was terminable at will. The case is a reminder that boards and owners who want to preserve the right to challenge a governing arrangement must object promptly rather than acquiesce, because Arizona courts give great weight to a settled course of performance and may treat decades of acceptance as an intentional relinquishment of the right to complain.

The decision also shows how recorded declarations can bind property that never received a separate, tailored recording. The 1969 Declaration encumbered every parcel adjacent to and contiguous with Viewpoint Lake, and the court held that this description gave constructive notice to anyone tracing title to El Dorado’s condominium tract — so the burden attached from the Declaration’s execution, not from some later filing. For buyers, associations, and title examiners, the case underscores the importance of tracing the full chain of title for recorded lake-, common-area-, or subdivision-wide restrictions, and it confirms that A.R.S. section 33-440 (effective in 2008) does not retroactively unsettle covenants and agreements that predate it. Because the opinion is an unpublished memorandum decision, it is not binding precedent, but it is a useful educational example of assessment, covenant, and waiver principles in the HOA context.

Step-by-step litigation record

Step 1969-07 Arizona Title, as trustee for Del E. Webb Development Corporation, records the Declaration of Restrictions governing Viewpoint Lake (Tract A) and adjacent, contiguous property.
Step 1971 The 1969 Declaration is amended (by Arizona Title as owner of Tract C) to regulate boats and boat docking facilities.
Step 1975 Recreation Centers of Sun City takes title to Viewpoint Lake and several golf courses and agrees to pay fifty percent of lake-maintenance costs (the 1975 Agreement).
Step 1977-03-01 The 1975 Agreement is amended to strike the developer subsidy while keeping Recreation Centers’ fifty-percent maintenance obligation.
Step 1979-04-19 At a Viewpoint Lake Management Board meeting, Recreation Centers’ president James Wormsley suggests a $95 flat assessment.
Step 1979 Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association sign the unrecorded 1979 Agreement setting a $95 per-lot fee with annual Consumer Price Index adjustments.
Step 2008 Each lakefront owner is assessed $302.10 for lake maintenance under the CPI formula.
Step 2008-12-10 Recreation Centers notifies the Board it will reduce lake-maintenance funding after January 1, 2009, and proposes a lakeshore-frontage formula.
Step 2009-02 The Board bills each lakefront owner $1,032.25 under the new proposed formula.
Step 2009 Six owners file a class action in Maricopa County Superior Court (No. CV2009-004740); El Dorado later intervenes to dispute the 1969 Declaration’s reach.
The superior court grants summary judgment for the certified class against Recreation Centers and for Recreation Centers against El Dorado.
Step 2010-12-14 Division One of the Arizona Court of Appeals affirms both grants of summary judgment and awards the class its appellate attorneys’ fees.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/cropley-v-recreation-centers-of-sun-city/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 2010-12-14

Opinion

Type: Decision or judgment

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

Download source file
2010-12-14_001_opinion.pdf

FAQ

What was the dispute in Cropley v. Recreation Centers of Sun City?

A certified class of eighty-one Viewpoint Lake homeowners in Sun City sued Recreation Centers of Sun City, Inc. after it announced in late 2008 that it would cut its funding of lake maintenance and switch to a lakeshore-frontage assessment formula that more than tripled homeowner bills (from $302.10 to $1,032.25 per lot). The homeowners sought to enforce a 1979 agreement that had allocated lake-maintenance costs by a $95 base fee adjusted annually by the Consumer Price Index. The El Dorado condominium association separately intervened, arguing the 1969 Declaration did not burden its property.

Why couldn’t Recreation Centers challenge the 1979 Agreement?

The Court of Appeals held that Recreation Centers waived any challenge to the agreement’s validity by acquiescing in it for nearly thirty years. Waiver is the intentional relinquishment of a known right, and a party that knowingly performs under an arrangement without objecting — as Recreation Centers did from 1979 to 2008 — cannot later argue it was an invalid amendment or terminable at will. The court did not need to decide whether the agreement was technically an amendment requiring an owner vote.

Did A.R.S. § 33-440 invalidate the 1979 Agreement?

No. The court held that A.R.S. § 33-440, which took effect in September 2008, does not apply retroactively (A.R.S. § 1-244) and so did not govern a 1979 agreement. Even if it applied, the court found no conflict: the 1979 Agreement qualifies as a private covenant affecting real property under § 33-440(C)(2) and is expressly validated by § 33-440(A)(1). The court also rejected the argument that § 33-440 applies only to planned communities.

How long does the 1979 Agreement last?

The court concluded the agreement was a binding settlement of indefinite duration tied to the underlying 1969 Declaration, not a short-term or terminable-at-will arrangement. The agreement adjusted assessments for any succeeding year and included a Consumer Price Index escalator, showing the parties intended it to handle future increases. Because it rested on the 1969 Declaration — which ran for thirty years with automatic ten-year renewals — its term matches that of the Declaration.

Was El Dorado’s condominium property bound by the 1969 Declaration?

Yes. The court held the recorded 1969 Declaration burdened El Dorado’s Tract C land because the Declaration encumbered Viewpoint Lake (Tract A) and all property adjacent to and contiguous with it. Del Webb owned both tracts in 1969, and a 1971 amendment confirmed Tract C’s contiguity, so anyone tracing title would have constructive notice of the burden. The court rejected El Dorado’s arguments that a later, separate filing was required and that the Declaration failed the statute of frauds.

Is this decision binding precedent, and who paid attorneys’ fees?

No. The decision is an unpublished memorandum decision marked Not for Publication, so it does not create legal precedent and may be cited only as authorized by ARCAP 28(c) and Ariz. R. Sup. Ct. 111(c). On fees, the Court of Appeals awarded the class plaintiffs their reasonable appellate attorneys’ fees and costs under A.R.S. § 12-341.01, awarded Recreation Centers fees limited to responding to El Dorado’s appeal, and denied El Dorado’s request for fees because it did not prevail.

Case Dossier

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Case Summary

Case ID / citation1 CA-CV 10-0034
Court / tribunalCourt of Appeals
Decision / key dateDecember 14, 2010
Judge / panelSheldon H. Weisberg (Author), Philip Hall (Presiding Judge, concurring), Diane M. Johnsen (concurring)
PartiesA certified class of Viewpoint Lake homeowners (Beryl Cropley, et al.) sued Recreation Centers of Sun City, Inc. to enforce a 1979 lake-maintenance assessment agreement, while the El Dorado of Sun City Condominiums Homeowners Association intervened to dispute whether the recorded 1969 Declaration burdened its property.
Governing law
Topics
cc-and-rsassessmentsattorneys-feescovenantsprocedure
Outcome / holding

Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement through nearly thirty years of knowing acquiescence, and the agreement — enforceable as a settlement of a bona fide dispute — prospectively governs the allocation of Viewpoint Lake maintenance assessments for the same duration as the underlying 1969 Declaration and is not barred by A.R.S. section 33-440. The recorded 1969 Declaration of Restrictions runs with and burdens El Dorado’s contiguous condominium land because it gave constructive notice to anyone tracing title, and the class plaintiffs are awarded their reasonable appellate attorneys’ fees under A.R.S. section 12-341.01.

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Key Issues & Findings

Case Summary

Viewpoint Lake sits in Sun City, Arizona, ringed by eighty-one single-family lots, the El Dorado of Sun City Condominiums, a recreation center, and a medical facility. A 1969 recorded Declaration of Restrictions made lake maintenance the responsibility of the surrounding lakefront owners but never specified how those costs should be split. After Recreation Centers of Sun City, Inc. took title to the lake and nearby golf courses in 1975 and agreed to pay half of maintenance, disputes arose over the rest. In 1979, Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association signed an unrecorded agreement setting a $95 per-lot fee adjusted annually by the Consumer Price Index, and the parties followed that formula for nearly thirty years. In late 2008, Recreation Centers announced it would reduce its funding and proposed a lakeshore-frontage formula that more than tripled homeowner assessments. Six owners filed a certified class action, and El Dorado intervened, arguing the 1969 Declaration did not burden its condominium tract. The superior court granted summary judgment for the class and for Recreation Centers against El Dorado. On appeal, Division One of the Arizona Court of Appeals affirmed. It held that Recreation Centers had waived any challenge to the 1979 Agreement through decades of acquiescence, that A.R.S. section 33-440 did not invalidate the agreement, that the agreement lasted as long as the 1969 Declaration, and that the recorded 1969 Declaration burdened El Dorado’s contiguous land. The court awarded the class its appellate attorneys’ fees. This is an unpublished memorandum decision and is not precedent.

Key Issues & Findings

Reviewing the summary judgments de novo, the court declined to resolve whether the 1979 Agreement was a substantive amendment to the 1969 Declaration that would have required the majority owner vote prescribed for amendments. It instead affirmed on the alternative ground that Recreation Centers had waived any right to challenge the agreement’s validity. Waiver is the intentional relinquishment of a known right, and a party’s persistent failure to object to conduct under a covenant can result in waiver or abandonment of the restriction. Here Recreation Centers had knowingly performed under the 1979 Agreement for nearly thirty years — paying its share and accepting the CPI-based allocation without objection — so no remand for factfinding was necessary. The court reinforced this with the contract principle that a course of performance accepted or acquiesced in without objection is given great weight in interpreting an agreement (Abrams v. Horizon Corp.; Restatement (Second) of Contracts section 202(4)).

The court next rejected Recreation Centers’ argument that A.R.S. section 33-440, governing private covenants, precluded the 1979 Agreement. Because no statute is retroactive unless expressly declared (A.R.S. section 1-244) and section 33-440 took effect on September 26, 2008, the statute did not control a 1979 agreement. Even assuming it applied, the court found no conflict: the 1979 Agreement is a private covenant affecting real property under section 33-440(C)(2) and is expressly validated by section 33-440(A)(1), which recognizes pre-statute covenants and precludes only later covenants inconsistent with them. The court also declined to read section 33-440 as limited to planned communities; although declaration is defined by reference to the Planned Communities Act (section 33-1802), the separate definition of private covenant is not so limited.

Interpreting the 1979 Agreement as a question of law, the court held it was a binding settlement of a bona fide dispute rather than a terminable-at-will, short-term arrangement. The agreement adjusted assessments for any succeeding year, incorporated a Consumer Price Index escalator showing the parties contemplated future increases, and rested on the 1969 Declaration, which itself ran for thirty years with automatic ten-year renewals; the court therefore tied the agreement’s duration to that of the Declaration. The court also rejected the contention that the Viewpoint Lake Homeowners Association lacked legal capacity: a party that deals with an association as an entity and accepts value from it is estopped from later denying its capacity to contract, and nothing in the Declaration gave the Management Board the exclusive power to allocate maintenance costs.

Finally, the court held the recorded 1969 Declaration burdened El Dorado’s Tract C property. It refused to read the Declaration’s reference to future deed language as a condition precedent to imposing the burden absent clear and unequivocal language, and it found the Declaration satisfied the statute of frauds because it identified the burdened estate — Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it — with sufficient certainty. Because Del Webb owned both tracts in 1969 and the 1971 amendment confirmed Tract C’s contiguity, anyone tracing title would have constructive notice that the Declaration encumbered Tract C from the moment of its execution.

Why It Matters

For Arizona homeowners and associations, this decision illustrates how a long-standing course of conduct can lock in a cost-sharing arrangement even when the original governing documents are silent or arguably require a formal amendment. Recreation Centers could not escape the 1979 assessment formula it had followed for three decades: by knowingly performing under the agreement year after year, it waived any argument that the agreement was an invalid amendment or was terminable at will. The case is a reminder that boards and owners who want to preserve the right to challenge a governing arrangement must object promptly rather than acquiesce, because Arizona courts give great weight to a settled course of performance and may treat decades of acceptance as an intentional relinquishment of the right to complain.

The decision also shows how recorded declarations can bind property that never received a separate, tailored recording. The 1969 Declaration encumbered every parcel adjacent to and contiguous with Viewpoint Lake, and the court held that this description gave constructive notice to anyone tracing title to El Dorado’s condominium tract — so the burden attached from the Declaration’s execution, not from some later filing. For buyers, associations, and title examiners, the case underscores the importance of tracing the full chain of title for recorded lake-, common-area-, or subdivision-wide restrictions, and it confirms that A.R.S. section 33-440 (effective in 2008) does not retroactively unsettle covenants and agreements that predate it. Because the opinion is an unpublished memorandum decision, it is not binding precedent, but it is a useful educational example of assessment, covenant, and waiver principles in the HOA context.

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Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath: HOA Court Case Guide

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Common-Element Maintenance | A.R.S. §§ 33-561, 33-556 | 2 CA-CIV 3815

Division Two affirms that a condominium association’s majority-adopted bylaw amendment validly placed roof maintenance on individual unit owners, defeating the owners’ claim for repair costs.

Last updated July 1, 2026. Case: Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath; 129 Ariz. 146, 629 P.2d 562 (App. 1981).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561’s requirement that the council ‘make provisions for the maintenance of the common elements,’ and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners.

Case Participants

Neutral Parties

  • Casita de Castilian, Inc. (Plaintiff/Appellee)
    Arizona non-profit corporation serving as the Council of Co-owners (apartment owners’ association) for the condominium; sued to recover unpaid assessments and penalties and prevailed on the owners’ roof-maintenance counterclaim.
  • Kenneth K. Kamrath (Defendant/Appellant)
    Owner (with his wife) of two units in the condominium; counterclaimed that the association was obligated to repair the roof.
  • Mary Elizabeth Kamrath (Defendant/Appellant)
    Owner (with her husband) of two units in the condominium; counterclaimed that the association was obligated to repair the roof.
  • Scott L. Taylor (Counsel)
    Zipf & Henderson (Tucson)
    Counsel for plaintiff/appellee Casita de Castilian, Inc.
  • Norris L. Ganson (Counsel)
    Norris L. Ganson (solo practitioner, Tucson)
    Counsel for defendants/appellants Kenneth and Mary Elizabeth Kamrath.
  • Ben C. Birdsall (Judge)
    Arizona Court of Appeals, Division Two
    Authored the opinion of the court (surname ‘Birdsall’ as given in the opinion).
  • Hathaway, C.J. (Judge)
    Arizona Court of Appeals, Division Two
    Chief Judge; concurred in the opinion.
  • Howard, J. (Judge)
    Arizona Court of Appeals, Division Two
    Judge; concurred in the opinion.

What happened and why it matters

Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association’s original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561’s requirement that the council ‘make provisions for’ maintenance. Finding no inequitable or disproportionate burden, the court denied the owners’ claimed setoff.

The Court of Appeals framed three questions: whether the corporation’s bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs ‘general common elements’ unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners’ argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.

On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.

On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council ‘make provisions for’ maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners’ reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.

This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state’s condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona’s particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners ‘make provisions for’ maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit’s roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.

The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a ‘taking’ of the other owners’ interests the way converting common area to one owner’s exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.

Step-by-step litigation record

Step 1962-03-22 Arizona’s condominium (horizontal property regime) statute, A.R.S. Section 33-551 et seq., took effect as an emergency measure (background cited by the court).
Step 1970 Casita de Castilian, Inc. adopted its original bylaws, which made the corporation responsible for maintaining all common elements.
Step 1975-12-15 The membership adopted amended bylaws by a 92-to-14 vote, shifting responsibility for roof maintenance from the corporation to the individual unit owners; the amended bylaws were recorded.
The association sued the Kamraths to recover $4,397 in unpaid assessments and $765 in late penalties; the Kamraths counterclaimed, seeking the roughly $2,393 cost of needed roof repairs.
After a trial on stipulated facts, the superior court ruled for the association on the complaint and the counterclaim, awarding assessments, penalties, and attorney fees and allowing no setoff.
Step 1981-04-07 The Arizona Court of Appeals, Division Two (Birdsall, J.), affirmed the judgment on the counterclaim.
Step 1981-05-13 Rehearing denied.
Step 1981-06-16 The Arizona Supreme Court denied review, leaving the published Court of Appeals decision as binding precedent.

FAQ

What was this case about?

A condominium association (Casita de Castilian, Inc., acting as the Council of Co-owners) sued two unit owners, the Kamraths, for $4,397 in unpaid assessments and $765 in late penalties. The owners counterclaimed that the association was required to maintain and repair their roof, a general common element, and should pay the roughly $2,393 repair cost. The Court of Appeals decided whether the association or the individual owners were responsible for that roof.

Who was responsible for maintaining the roof, and why?

The individual owners were responsible. Although a roof is a ‘general common element’ under A.R.S. Section 33-551(6)(b), neither the statute nor the declaration fixed who had to maintain it. The association’s 1975 amended bylaws made each member responsible for the roof covering of the apartment owned. The court held the bylaws were a proper place to allocate that responsibility, so the owners, not the association, had to pay for their roof repairs.

Did the association need a unanimous vote to shift roof maintenance to owners?

No. The court found nothing in the condominium statute requiring unanimous agreement to allocate maintenance duties; the only statutory unanimity requirement (A.R.S. Section 33-556) applies to withdrawing property from the regime. Reading the declaration, articles, and statute together, the court held a simple majority could adopt or amend the maintenance bylaws. Here the amendment passed 92 to 14.

Why didn’t the case Makeever v. Lyle help the owners?

In Makeever v. Lyle, a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ shared interests. This case was different: reallocating who maintains a single common element (the roof) did not take away anyone’s ownership interest, so the court held Makeever was not controlling.

What does it mean that A.R.S. Section 33-561 says the council must ‘make provisions for’ maintenance?

The court stressed that Arizona’s statute does not make the association responsible for doing the maintenance; it requires only that the council ‘make provisions for’ it. Comparing the FHA Model Act, the Uniform Condominium Act (which Arizona did not adopt), and other states’ laws, the court concluded that assigning roof upkeep to individual owners was a valid way to ‘make provisions for’ maintenance.

Is there any limit on shifting maintenance costs to certain owners?

Yes, an equitable one. The court distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners. The court noted the Kamraths raised no claim that the amendment here was unfair, disproportionate, or inequitable, and held that absent such an inequitable result, a majority may place maintenance of a common element on the individual owners.

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 / citation129 Ariz. 146, 629 P.2d 562 (App. 1981)
Court / tribunalCourt of Appeals
Decision / key dateApril 7, 1981
Judge / panelBirdsall, J. (author), Hathaway, C.J. (concurring), Howard, J. (concurring)
PartiesCasita de Castilian, Inc. (condominium council of co-owners; plaintiff/appellee) v. Kenneth K. and Mary Elizabeth Kamrath (unit owners; defendants/appellants).
Governing law
Topics
assessmentscc-and-rsattorneys-feescovenants
Outcome / holding

A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561’s requirement that the council ‘make provisions for the maintenance of the common elements,’ and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners.

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 roadmap8 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

Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association’s original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561’s requirement that the council ‘make provisions for’ maintenance. Finding no inequitable or disproportionate burden, the court denied the owners’ claimed setoff.

Key Issues & Findings

The Court of Appeals framed three questions: whether the corporation’s bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs ‘general common elements’ unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners’ argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.

On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.

On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council ‘make provisions for’ maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners’ reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.

Why It Matters

This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state’s condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona’s particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners ‘make provisions for’ maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit’s roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.

The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a ‘taking’ of the other owners’ interests the way converting common area to one owner’s exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.

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