Tag Archives: covenants

Arizona Biltmore Estates Association v. Tezak: HOA Court Case Guide

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CC&R Enforcement | A.R.S. § 12-341.01 | 1 CA-CV 92-0188

Division One construes a “trailer, camper, boat or similar equipment” covenant as a whole and holds that a large customized bus is exactly the kind of bulky, nonstandard conveyance the drafters intended to restrict.

Last updated July 1, 2026. Case: Arizona Biltmore Estates Association v. Tezak; 177 Ariz. 447, 868 P.2d 1030 (App. 1993); Not stated in the opinion (action filed in Maricopa County Superior Court).

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

Construing the declaration of covenants as a whole to give effect to the drafters’ paramount intent, the Court of Appeals held that the Tezaks’ large customized bus was “similar equipment” within the deed restriction on parking a “trailer, camper, boat or similar equipment,” notwithstanding the rule that restrictive covenants are strictly construed. Because no Architectural Committee approval had been obtained, the Association was entitled to an injunction requiring the bus’s removal, and the trial court’s contrary summary judgment was reversed.

Case Participants

Neutral Parties

  • Arizona Biltmore Estates Association (Appellant)
    Non-profit Arizona corporation and homeowners association for the Arizona Biltmore Estates subdivision; plaintiff below and appellant, seeking an injunction to remove the bus.
  • Robert Tezak (Appellee)
    Lot owner in the subdivision who, with his wife, parked the customized bus on the residential property; defendant below and appellee. The bus was registered to “UNO Products, Inc., Robert J. Tezak.”
  • Nancy Tezak (Appellee)
    Co-owner and Robert Tezak’s wife; co-defendant below and co-appellee.
  • Donald E. Dyekman (Counsel)
    O’Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A.
    Counsel for Plaintiff-Appellant Arizona Biltmore Estates Association (Phoenix).
  • Christopher Robbins (Counsel)
    O’Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A.
    Counsel for Plaintiff-Appellant Arizona Biltmore Estates Association (Phoenix).
  • Michael P. West (Counsel)
    Mariscal, Weeks, McIntyre & Friedlander, P.A.
    Counsel for Defendants-Appellees Robert and Nancy Tezak (Phoenix).
  • Donna M. Somsky (Counsel)
    Mariscal, Weeks, McIntyre & Friedlander, P.A.
    Counsel for Defendants-Appellees Robert and Nancy Tezak (Phoenix).
  • Contreras (Judge)
    Arizona Court of Appeals, Division One, Department B
    Judge who authored the opinion reversing the trial court.
  • Jacobson (Judge)
    Arizona Court of Appeals, Division One, Department B
    Presiding Judge; concurred.
  • Lankford (Judge)
    Arizona Court of Appeals, Division One, Department B
    Judge; concurred.

What happened and why it matters

The Arizona Biltmore Estates Association, the homeowners association for a Phoenix-area subdivision, sued lot owners Robert and Nancy Tezak seeking an injunction to remove a large customized bus—weighing more than 29,000 pounds and resembling a commercial bus—that the Tezaks began parking at the back of their residential lot around September 1989. The Association contended the vehicle violated a recorded deed restriction (Article XI, Section 6) barring any “trailer, camper, boat or similar equipment” from being kept on the property without approval from the Architectural Committee. The Maricopa County Superior Court denied the injunction and granted the Tezaks summary judgment, reasoning that the bus was not covered by the covenant, and awarded the Tezaks their attorney’s fees. On appeal, Division One of the Arizona Court of Appeals reversed. The court acknowledged that restrictive covenants are strictly construed in favor of the free use of property, but explained that the paramount principle is the intent of the parties who drafted the declaration, determined by reading the document as a whole. Considering the “or similar equipment” language together with the declaration’s stated purpose of protecting the value and attractiveness of the property and its many other use restrictions, the court concluded the drafters intended to restrict large, bulky, nonstandard conveyances, and the Tezaks’ bus plainly qualified. The court distinguished a Missouri decision the Tezaks relied on, followed a Washington case reaching the same result on similar facts, reversed, and remanded for entry of summary judgment and an injunction for the Association, while awarding the Association its attorney’s fees under A.R.S. § 12-341.01.

Because the interpretation of the deed restrictions presented a question of law, the Court of Appeals reviewed the trial court’s summary judgment de novo and was not bound by its conclusions of law. The court treated the recorded restrictions as a covenant running with the land that forms a contract between the subdivision’s owners as a whole and each individual lot owner (citing Divizio v. Kewin Enterprises). It first observed that Article XI, Section 6 does not categorically ban the listed conveyances; it bars them only when they have not been approved by the Architectural Committee, and no such approval had been sought or given for the Tezaks’ bus.

The Association conceded the bus was neither a trailer, a camper, nor a boat, and argued instead that it was “similar equipment.” The Tezaks invoked the rule of ejusdem generis—that general words following a specific enumeration are limited by that enumeration unless a contrary intent is clearly shown—and contended that trailers and campers share a feature of temporary living arrangements that their bus lacked. They also urged strict construction, under which ambiguities in restrictive covenants are resolved in favor of the free use of property (citing Duffy v. Sunburst Farms East).

The court rejected the “temporary living arrangements” limitation as implausible, noting that boats are expressly enumerated yet usually contain no living quarters, so adopting that limitation would mean boats should never have been listed. It then explained that although strict construction applies in some circumstances, the cardinal principle in construing restrictive covenants is the paramount intent of the parties, ascertained by reading the declaration as a whole, and that a covenant should not be read to defeat its plain and obvious meaning. The declaration’s recitals stated that the covenants existed to enhance and protect the value, desirability, and attractiveness of the property and the quality of life within the Village, and Section 6 was one of eleven provisions restricting uses that would be unsightly or annoying. Read together, these provisions showed the drafters intended to restrict the display of large, bulky, nonstandard conveyances, and the Tezaks’ very large bus unquestionably fell within that class. The court followed Krein v. Smith (Wash. App.), where a motor home was held covered by a similar restriction after construing the document as a whole, and distinguished Lake St. Louis Community Association v. Leidy (Mo. App.), reasoning that the phrase “or similar equipment” is broader and less limiting than the Missouri covenant’s “trailers of every other description,” and that size was not the only characteristic the drafters intended to restrict. Having found the parking covenant violated, the court did not reach the Association’s alternative argument that the bus also breached the covenant against business or non-residential use.

Tezak is an Arizona illustration of how courts reconcile two competing canons that govern deed-restriction disputes: the rule that restrictive covenants are strictly construed in favor of the free use of land, and the overriding principle that the drafters’ intent—gathered from the declaration read as a whole—controls. The decision shows that a catch-all phrase like “or similar equipment,” when read alongside a declaration’s stated purposes and its other use restrictions, can reach vehicles the drafters never specifically named, so long as the vehicle shares the essential character the restriction targets (here, large, bulky, nonstandard conveyances).

For associations and owners alike, the case is a practical reminder that a covenant’s general language is not automatically neutralized by strict construction or by ejusdem generis; the outcome turns on what the governing documents, taken together, were plainly designed to prevent. It also highlights the role of an architectural-approval mechanism—the restriction bars unapproved conveyances rather than banning them outright—and confirms that a prevailing association in a covenant-enforcement action may recover attorney’s fees under A.R.S. § 12-341.01. This summary is educational and neutral; it is not legal advice, and results in other disputes will depend on the specific covenant language and facts.

Step-by-step litigation record

Step 1976-02-05 Restrictive covenants (CC&Rs) for the Arizona Biltmore Estates subdivision are recorded, including Article XI, Section 6 restricting a “trailer, camper, boat or similar equipment.”
Step 1989-09 The Tezaks begin parking a customized bus weighing more than 29,000 pounds at the back of their residential lot.
Step 1989-1990 After the Association learns of the bus and the parties fail to resolve the matter, the Association files a civil action in Maricopa County Superior Court seeking an injunction to remove the vehicle.
Step 1992 On cross-motions for summary judgment, the trial court denies the Association’s requested injunction, grants the Tezaks summary judgment, and awards the Tezaks attorney’s fees; the Association appeals (No. 1 CA-CV 92-0188).
Step 1993-11-18 Division One of the Arizona Court of Appeals issues its opinion reversing and remanding for entry of summary judgment and an injunction for the Association.
Step 1993-11-19 Opinion “As Corrected.”
Step 1994-02-14 Reconsideration denied.

FAQ

What was the dispute in Arizona Biltmore Estates Association v. Tezak about?

The homeowners association sued lot owners Robert and Nancy Tezak for an injunction to remove a large customized bus (more than 29,000 pounds, resembling a commercial bus) that they parked on their residential lot. The Association argued the bus violated a recorded deed restriction barring any “trailer, camper, boat or similar equipment” from the property without approval by the Architectural Committee. The trial court sided with the owners, but the Court of Appeals reversed and held the bus was covered by the restriction.

Did the deed restriction specifically mention a bus or a motor home?

No. Article XI, Section 6 listed only a “trailer, camper, boat or similar equipment.” The Association conceded the bus was not a trailer, camper, or boat and argued it fell within the catch-all phrase “or similar equipment.” The court agreed, concluding that a very large, bulky, self-propelled vehicle of this kind was “similar equipment” within the meaning the drafters intended.

How did the court handle the rule that restrictive covenants are strictly construed?

The court acknowledged that restrictive covenants are strictly construed against those enforcing them, with ambiguities resolved in favor of the free use of property. But it explained that the cardinal principle is the paramount intent of the parties, determined by reading the declaration as a whole, and that a covenant should not be read in a way that defeats its plain and obvious meaning. Strict construction did not override the drafters’ evident intent here.

What is ejusdem generis, and why didn’t it help the homeowners?

Ejusdem generis is a rule that general words following a list of specific items are limited to things of the same kind. The Tezaks argued trailers and campers share “temporary living arrangements” that their bus lacked. The court rejected that limitation as implausible because boats—expressly listed—usually have no living quarters, and because reading the declaration as a whole showed the drafters were targeting large, bulky, nonstandard conveyances, a class the bus plainly fit.

Could the homeowners have kept the bus if they had gotten approval?

The restriction did not ban the listed conveyances outright; it barred them only when they had not been placed or maintained in a manner approved by the Architectural Committee under Article VI of the declaration. In this case, no such approval had been sought or obtained for the bus, so the unapproved vehicle violated the covenant.

Who paid attorney’s fees, and is the decision binding precedent?

The trial court had awarded the Tezaks their fees, but the Court of Appeals vacated that award on reversal and instead awarded the Association its attorney’s fees for both the trial and the appeal under A.R.S. § 12-341.01, with the amount to be set after compliance with the appellate fee rule. The decision is a published Arizona Court of Appeals opinion (177 Ariz. 447, 868 P.2d 1030), so it is precedential.

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 / citation177 Ariz. 447, 868 P.2d 1030 (App. 1993)
Court / tribunalCourt of Appeals
Decision / key dateNovember 18, 1993
Judge / panelContreras (author), Jacobson, P.J., Lankford, J.
PartiesA homeowners association (Arizona Biltmore Estates Association) sued lot owners Robert and Nancy Tezak for an injunction to remove a 29,000-pound customized bus parked on their residential lot, contending it violated a recorded deed restriction barring any “trailer, camper, boat or similar equipment” kept without Architectural Committee approval.
Governing law
Topics
cc-and-rscovenantsarchitectural-reviewattorneys-feesprocedure
Outcome / holding

Construing the declaration of covenants as a whole to give effect to the drafters’ paramount intent, the Court of Appeals held that the Tezaks’ large customized bus was “similar equipment” within the deed restriction on parking a “trailer, camper, boat or similar equipment,” notwithstanding the rule that restrictive covenants are strictly construed. Because no Architectural Committee approval had been obtained, the Association was entitled to an injunction requiring the bus’s removal, and the trial court’s contrary summary judgment was reversed.

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

The Arizona Biltmore Estates Association, the homeowners association for a Phoenix-area subdivision, sued lot owners Robert and Nancy Tezak seeking an injunction to remove a large customized bus—weighing more than 29,000 pounds and resembling a commercial bus—that the Tezaks began parking at the back of their residential lot around September 1989. The Association contended the vehicle violated a recorded deed restriction (Article XI, Section 6) barring any “trailer, camper, boat or similar equipment” from being kept on the property without approval from the Architectural Committee. The Maricopa County Superior Court denied the injunction and granted the Tezaks summary judgment, reasoning that the bus was not covered by the covenant, and awarded the Tezaks their attorney’s fees. On appeal, Division One of the Arizona Court of Appeals reversed. The court acknowledged that restrictive covenants are strictly construed in favor of the free use of property, but explained that the paramount principle is the intent of the parties who drafted the declaration, determined by reading the document as a whole. Considering the “or similar equipment” language together with the declaration’s stated purpose of protecting the value and attractiveness of the property and its many other use restrictions, the court concluded the drafters intended to restrict large, bulky, nonstandard conveyances, and the Tezaks’ bus plainly qualified. The court distinguished a Missouri decision the Tezaks relied on, followed a Washington case reaching the same result on similar facts, reversed, and remanded for entry of summary judgment and an injunction for the Association, while awarding the Association its attorney’s fees under A.R.S. § 12-341.01.

Key Issues & Findings

Because the interpretation of the deed restrictions presented a question of law, the Court of Appeals reviewed the trial court’s summary judgment de novo and was not bound by its conclusions of law. The court treated the recorded restrictions as a covenant running with the land that forms a contract between the subdivision’s owners as a whole and each individual lot owner (citing Divizio v. Kewin Enterprises). It first observed that Article XI, Section 6 does not categorically ban the listed conveyances; it bars them only when they have not been approved by the Architectural Committee, and no such approval had been sought or given for the Tezaks’ bus.

The Association conceded the bus was neither a trailer, a camper, nor a boat, and argued instead that it was “similar equipment.” The Tezaks invoked the rule of ejusdem generis—that general words following a specific enumeration are limited by that enumeration unless a contrary intent is clearly shown—and contended that trailers and campers share a feature of temporary living arrangements that their bus lacked. They also urged strict construction, under which ambiguities in restrictive covenants are resolved in favor of the free use of property (citing Duffy v. Sunburst Farms East).

The court rejected the “temporary living arrangements” limitation as implausible, noting that boats are expressly enumerated yet usually contain no living quarters, so adopting that limitation would mean boats should never have been listed. It then explained that although strict construction applies in some circumstances, the cardinal principle in construing restrictive covenants is the paramount intent of the parties, ascertained by reading the declaration as a whole, and that a covenant should not be read to defeat its plain and obvious meaning. The declaration’s recitals stated that the covenants existed to enhance and protect the value, desirability, and attractiveness of the property and the quality of life within the Village, and Section 6 was one of eleven provisions restricting uses that would be unsightly or annoying. Read together, these provisions showed the drafters intended to restrict the display of large, bulky, nonstandard conveyances, and the Tezaks’ very large bus unquestionably fell within that class. The court followed Krein v. Smith (Wash. App.), where a motor home was held covered by a similar restriction after construing the document as a whole, and distinguished Lake St. Louis Community Association v. Leidy (Mo. App.), reasoning that the phrase “or similar equipment” is broader and less limiting than the Missouri covenant’s “trailers of every other description,” and that size was not the only characteristic the drafters intended to restrict. Having found the parking covenant violated, the court did not reach the Association’s alternative argument that the bus also breached the covenant against business or non-residential use.

Why It Matters

Tezak is an Arizona illustration of how courts reconcile two competing canons that govern deed-restriction disputes: the rule that restrictive covenants are strictly construed in favor of the free use of land, and the overriding principle that the drafters’ intent—gathered from the declaration read as a whole—controls. The decision shows that a catch-all phrase like “or similar equipment,” when read alongside a declaration’s stated purposes and its other use restrictions, can reach vehicles the drafters never specifically named, so long as the vehicle shares the essential character the restriction targets (here, large, bulky, nonstandard conveyances).

For associations and owners alike, the case is a practical reminder that a covenant’s general language is not automatically neutralized by strict construction or by ejusdem generis; the outcome turns on what the governing documents, taken together, were plainly designed to prevent. It also highlights the role of an architectural-approval mechanism—the restriction bars unapproved conveyances rather than banning them outright—and confirms that a prevailing association in a covenant-enforcement action may recover attorney’s fees under A.R.S. § 12-341.01. This summary is educational and neutral; it is not legal advice, and results in other disputes will depend on the specific covenant language and facts.

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

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Arizona HOA Case Explainer

The Court of Appeals held that a broad majority-amendment clause is not a blank check to impose brand-new membership and assessment burdens on owners who had no notice of them, especially in a community with no common areas.

Arizona Court of Appeals | 224 Ariz. 42, 226 P.3d 411 (App. 2010) | Decided 2010-03-16

Read the source opinion FAQ

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

Source note: This page links to the public opinion record and does not provide a local PDF download.

The takeaway

A generic provision allowing recorded deed restrictions to be amended “in whole or in part” by a majority vote of lot owners cannot be used to impose substantial, previously unforeseeable new affirmative obligations – here, mandatory homeowners’-association membership and lienable assessments – on a community that has no common areas and where club membership had always been voluntary, because such owners took title without notice that these servitudes could be imposed non-consensually. The Second Amended Declarations were therefore invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Case Participants

Petitioner Side

  • Dreamland Villa Community Club, Inc. (Plaintiff-Appellant/Cross-Appellee)
    Arizona nonprofit corporation; originally a voluntary recreational club that sought to become a mandatory homeowners’ association through amended declarations.
  • Charles E. Maxwell (Counsel)
    Maxwell & Morgan, PC (Mesa)
    Counsel for DVCC (association).
  • Brian W. Morgan (Counsel)
    Maxwell & Morgan, PC (Mesa)
    Counsel for DVCC (association).

Respondent Side

  • Daryle G. Raimey (and other Dreamland Villa homeowners in sections 7, 14, 15, 16, 17, and 18) (Defendant-Appellee/Cross-Appellant)
    Named lead among the dissenting homeowners who refused to pay the new assessments; prevailed on appeal.
  • Steven W. Cheifetz (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.
  • Stewart F. Gross (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.
  • Matthew A. Klopp (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.

Neutral Parties

  • Jon W. Thompson (Judge)
    Presiding Judge; authored the opinion.
  • Daniel A. Barker (Judge)
    Concurred.
  • Ann A. Scott Timmer (Judge)
    Chief Judge; concurred.

What happened

Dreamland Villa is an age-restricted residential community of eighteen sections near Mesa, Arizona. The first section was platted in 1958 and the last in 1972, and every residence must be occupied by at least one person aged fifty-five or older. Critically, the community had no common areas – no shared park, roads, or amenities owned collectively by the lot owners.

Dreamland Villa Community Club, Inc. (DVCC) was incorporated in 1961 as a nonprofit corporation formed by volunteers to provide recreational facilities – clubhouses, a recreation center with swimming pools, shuffleboard courts, and a ballroom – to those who chose to join. Membership was voluntary, the facilities were open only to members, and the club was funded by voluntary dues. Many homeowners never joined or used the facilities.

Each section was governed by a separate recorded Declaration of Restrictions from the 1960s and 1970s. With the exception of section 18, none mentioned DVCC, membership, or assessments; they addressed appearance and maintenance matters like single-family use, minimum floor area, and signs. Each contained a generic amendment clause allowing the covenants to be ‘changed in whole or in part or revoked in their entirety by a vote of the owners of a majority of the lots.’ Section 18’s declaration did reference an assessment, but it imposed that charge only on non-members and did not grant membership rights.

In 2003 and 2004, DVCC recorded a Second Amended Declaration of Restrictions for each section. Each Second Amended Declaration required lot owners to pay annual and special assessments to DVCC, reciting purposes including the improvement, maintenance, and replacement of ‘Common Areas’ – even though the community had none. Beginning in December 2006, DVCC filed a series of lawsuits against homeowners who refused to pay, and the suits were consolidated.

Homeowners in sections 7, 14, 15, 16, 17, and 18 answered and counterclaimed, arguing that the Second Amended Declarations were void and that they could not be forced into membership in a nonprofit corporation or made to pay assessments. On cross-motions, the trial court granted summary judgment for DVCC in September 2007, reasoning that under A.R.S. section 10-3601(B) and Shamrock v. Wagon Wheel Park HOA, a homeowner who takes a deed with a majority-amendment clause impliedly consents to a later majority vote making association membership mandatory.

On the collateral money and fee questions, the trial court declined to award DVCC its attorneys’ fees, citing the homeowners’ good-faith defenses, the novel and complex issues presented, and undue hardship. After an evidentiary hearing it capped late fees at $15 per year under A.R.S. section 33-1803(A) and applied eighteen-percent interest to unpaid assessments. The court signed twenty-five separate judgments; DVCC appealed the fee and damages rulings, and the homeowners cross-appealed the validity of the amendments.

The Court of Appeals addressed the cross-appeal first and reversed. It held that Shamrock left open whether a majority could amend to create mandatory membership, that its prior citation to Colorado’s Evergreen Highlands was not an adoption of that permissive rule, and that Evergreen was distinguishable because it involved pre-existing common areas all owners had always used. Following the Lakeland line and Armstrong v. Ledges HOA, the court held that a generic amendment power could not force the dissenting minority into a voluntary club and lien their lots, because they had no notice such servitudes could be imposed non-consensually. Having found the Second Amended Declarations invalid and unenforceable, the court did not reach DVCC’s fee and late-charge claims, and it awarded the homeowners their attorneys’ fees on appeal.

Dreamland Villa v. Raimey is a foundational Arizona authority on the outer limits of an HOA’s power to amend its governing documents. It draws a sharp line between amendments that adjust or extend obligations the community already bargained for and amendments that impose wholly new, substantial, and unforeseeable burdens – such as compulsory membership in a formerly voluntary club and lienable assessments – on owners who never had notice such servitudes could be added. The decision teaches that a broad ‘may be changed in whole or in part’ clause is not a blank check, and that the presence or absence of common areas that all owners have always used can be decisive in whether new assessments are enforceable. The case matters for boards, managers, and homeowners because it frames a recurring dispute: can a bare majority convert a voluntary arrangement into a mandatory, assessment-bearing association over the objection of a dissenting minority? Raimey answers no on these facts and situates Arizona within the Lakeland/Armstrong line rather than the more permissive Evergreen approach. Its reasoning was later reinforced at the highest level by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA (2022), which held that owners must have notice of the kinds of restrictions that may be added by amendment. Practitioners should read Raimey as a caution to build any expansive assessment or membership authority into the recorded declaration from the outset, and homeowners should read it as support for challenging after-the-fact amendments that create obligations they never bargained for.

Litigation record

Step 1 1958

First section of Dreamland Villa is platted near Mesa, Arizona; the community will grow to eighteen sections by 1972, with no common areas.

Filed by: Court record

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

Step 2 1961

Dreamland Villa Community Club, Inc. (DVCC) is incorporated as a nonprofit to provide recreational facilities to voluntary members.

Filed by: Court record

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

Step 3 1963-1978

Separate Declarations of Restrictions are recorded for the sections (section 7 in 1963; sections 14-17 in 1970-1972; section 18 in 1978), each with a generic majority-amendment clause.

Filed by: Court record

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

Step 4 2003-2004

DVCC records a Second Amended Declaration of Restrictions for each section, purporting to require every lot owner to pay annual and special assessments.

Filed by: Court record

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

Step 5 2006-12

DVCC begins filing lawsuits against homeowners who refuse to pay the new assessments; the cases are later consolidated.

Filed by: Court record

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

Step 6 2007-05

Homeowners move for summary judgment, arguing DVCC cannot impose membership or assessments without consent.

Filed by: Court record

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

Step 7 2007-09

Trial court grants DVCC’s motions for summary judgment, relying on A.R.S. section 10-3601(B) and Shamrock, and denies the homeowners’ Rule 56(f) request.

Filed by: Court record

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

Step 8 2007-10

Trial court declines to award DVCC attorneys’ fees, citing good-faith defenses, novel issues, and undue hardship; later caps late fees at $15/year under A.R.S. section 33-1803(A).

Filed by: Court record

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

Step 9 2008

Twenty-five separate judgments are entered; DVCC appeals and the homeowners cross-appeal (No. 1 CA-CV 08-0388).

Filed by: Court record

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

Step 10 2010-03-16

Court of Appeals, Division One, reverses and remands, holding the Second Amended Declarations invalid and unenforceable and awarding the homeowners appellate fees.

Filed by: Court record

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

Step 11 2010-06-07

Reconsideration denied.

Filed by: Court record

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

FAQ

What did Dreamland Villa v. Raimey decide?

The Arizona Court of Appeals held that a generic clause letting deed restrictions be ‘changed in whole or in part’ by a majority vote could not be used to impose brand-new, substantial obligations – mandatory HOA membership and lienable assessments – on owners in a community with no common areas where membership had always been voluntary. The Second Amended Declarations were declared invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Why did the fact that Dreamland Villa had no common areas matter so much?

The absence of common areas was decisive. Courts (including Colorado’s Evergreen Highlands) have upheld new assessments where owners had always used shared amenities, reasoning the duty to pay for them was implicit in the original bargain. Dreamland Villa had no shared park, roads, or amenities owned in common, and the club’s facilities were open only to voluntary members. Without common areas that everyone used, there was no implicit obligation to support, so a majority could not manufacture one through amendment.

Doesn’t accepting a deed with an amendment clause mean owners consented to whatever the majority later adds?

Not automatically. The court recognized that buyers who accept recorded restrictions are generally bound by them, and that A.R.S. section 10-3601(B) allows implied consent to nonprofit membership. But it held a generic ‘amend in whole or in part’ clause is not notice that a majority could later impose compulsory membership and assessments never mentioned in the original documents. Owners can only be bound by what they had notice of, so this particular new burden was not something they impliedly consented to.

What is the ‘Lakeland line’ versus the ‘Evergreen’ approach the court discussed?

The Lakeland line (including Lakeland Property Owners Ass’n v. Larson and Armstrong v. Ledges HOA) refuses to enforce amendments that impose substantial, unforeseeable new burdens on objecting owners without proper notice. Colorado’s Evergreen Highlands took a more permissive view, allowing a modification clause to add mandatory assessments – but there the association maintained pre-existing common areas all owners used. Raimey aligned Arizona with the Lakeland line on these facts, distinguishing Evergreen because Dreamland Villa had no common areas.

Is Dreamland Villa v. Raimey still good law, and how does it relate to Kalway v. Calabria Ranch?

Yes. Raimey is a published, precedential Arizona Court of Appeals decision. Its notice-based reasoning was reinforced in 2022 by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA, which held that owners must have notice of the kinds of restrictions that may be added by amendment and that a general amendment power does not authorize entirely new and unforeseen restrictions. Read together, the cases limit an HOA’s ability to use a broad amendment clause to create obligations owners never bargained for.

What happened with attorneys’ fees and late charges in the case?

The trial court had declined to award DVCC its fees, citing the homeowners’ good-faith defenses, novel and complex issues, and undue hardship, and it capped late fees at $15 per year under A.R.S. section 33-1803(A). Because the Court of Appeals found the amended declarations invalid and vacated the judgments for DVCC, it did not need to reach DVCC’s fee and late-charge arguments. Instead, it awarded the prevailing homeowners their reasonable attorneys’ fees on appeal under A.R.S. section 12-341.01, subject to compliance with the appellate rules.

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 / citation224 Ariz. 42, 226 P.3d 411 (App. 2010)
Court / tribunalCourt of Appeals
Decision / key dateMarch 16, 2010
Judge / panelJon W. Thompson (Presiding Judge, author), Daniel A. Barker (Judge, concurring), Ann A. Scott Timmer (Chief Judge, concurring)
PartiesA voluntary community recreational club turned homeowners’ association (DVCC) sued dissenting homeowners in six sections to enforce mandatory membership and assessments imposed by amended deed restrictions.
Governing law
Topics
amendmentscc-and-rsassessmentscovenantsmembership
Outcome / holding

A generic provision allowing recorded deed restrictions to be amended “in whole or in part” by a majority vote of lot owners cannot be used to impose substantial, previously unforeseeable new affirmative obligations – here, mandatory homeowners’-association membership and lienable assessments – on a community that has no common areas and where club membership had always been voluntary, because such owners took title without notice that these servitudes could be imposed non-consensually. The Second Amended Declarations were therefore invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF, 19 other source files
Step-by-step docket roadmap11 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

Dreamland Villa is an age-restricted residential community of eighteen sections near Mesa, Arizona, built between 1958 and 1972, with no common areas. Dreamland Villa Community Club, Inc. (DVCC) was incorporated in 1961 as a voluntary nonprofit recreational club, offering clubhouses, pools, shuffleboard courts, and a ballroom funded by voluntary dues. The original recorded Declarations of Restrictions for the sections at issue said nothing about DVCC, membership, or assessments; they did, however, allow amendment “in whole or in part” by a majority vote of lot owners. In 2003 and 2004, DVCC recorded Second Amended Declarations requiring every lot owner to pay annual and special assessments. When homeowners in sections 7, 14, 15, 16, 17, and 18 refused, DVCC sued and won summary judgment; the trial court reasoned that by accepting deeds with a majority-amendment clause, the owners impliedly consented to mandatory membership under A.R.S. section 10-3601(B) and Shamrock v. Wagon Wheel Park HOA. The Court of Appeals reversed. It concluded Shamrock left open whether a majority could amend to create such new obligations, distinguished Colorado’s Evergreen Highlands (which involved pre-existing common areas), and followed the Lakeland/Armstrong line of authority: because Dreamland Villa had no common areas and membership had always been voluntary, a generic amendment power could not force the objecting minority into association membership and lienable assessments they never bargained for and had no notice of. The court also rejected DVCC’s claim that section 18’s original declaration mandated membership, finding it assessed only non-members. The Second Amended Declarations were declared invalid and unenforceable, and the homeowners were awarded appellate attorneys’ fees.

Key Issues & Findings

The court reviewed the summary judgment de novo. It began with A.R.S. section 10-3601(B), which provides that no person may be admitted as a member of a nonprofit corporation without that person’s express or implied consent. While a grantee who accepts a deed subject to recorded restrictions ordinarily assents to those restrictions, the court held that a generic clause allowing amendment “in whole or in part” by majority vote does not, standing alone, supply consent to entirely new affirmative burdens. The court read Shamrock v. Wagon Wheel Park HOA as establishing only that mandatory membership must appear in a recorded declaration (not merely in bylaws), and as leaving open whether a majority could amend a declaration to create such membership. It declined to treat its earlier favorable citation to Colorado’s Evergreen Highlands as an adoption of that approach, noting Evergreen itself distinguished the Lakeland line based on ‘the differing factual scenarios and severity of consequences.’ In Evergreen the association maintained pre-existing common areas that all lot owners had always used, so an assessment was implicit in the original bargain; Dreamland Villa, by contrast, had no common areas, membership had always been voluntary, and many owners never joined. Following Lakeland and Armstrong v. Ledges HOA, the court held a majority could not force the dissenting 49% into a club they had chosen against and lien their lots for it, because the circumstances showed no proper notice that such servitudes could be imposed non-consensually under a generic amendment power. Rather than rest on the breadth of the amendment language, the court grounded its holding on the lack of notice and the substantial, unforeseeable nature of the new obligations. It also rejected DVCC’s contention that section 18’s original declaration required membership, finding that declaration assessed only non-members and conferred no membership rights.

Why It Matters

Dreamland Villa v. Raimey is a foundational Arizona authority on the outer limits of an HOA’s power to amend its governing documents. It draws a sharp line between amendments that adjust or extend obligations the community already bargained for and amendments that impose wholly new, substantial, and unforeseeable burdens – such as compulsory membership in a formerly voluntary club and lienable assessments – on owners who never had notice such servitudes could be added. The decision teaches that a broad ‘may be changed in whole or in part’ clause is not a blank check, and that the presence or absence of common areas that all owners have always used can be decisive in whether new assessments are enforceable.

The case matters for boards, managers, and homeowners because it frames a recurring dispute: can a bare majority convert a voluntary arrangement into a mandatory, assessment-bearing association over the objection of a dissenting minority? Raimey answers no on these facts and situates Arizona within the Lakeland/Armstrong line rather than the more permissive Evergreen approach. Its reasoning was later reinforced at the highest level by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA (2022), which held that owners must have notice of the kinds of restrictions that may be added by amendment. Practitioners should read Raimey as a caution to build any expansive assessment or membership authority into the recorded declaration from the outset, and homeowners should read it as support for challenging after-the-fact amendments that create obligations they never bargained for.

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Kalway v. Calabria Ranch HOA, LLC: HOA Court Case Guide

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Arizona Supreme Court · CC&R Amendments

How a five-lot Tucson subdivision’s fight over majority-vote amendments produced Arizona’s leading rule on the limits of an HOA’s power to change its CC&Rs.

Arizona Supreme Court | 252 Ariz. 532; 506 P.3d 18 (2022) | Decided 2022-03-22

Download the ruling PDF FAQ

Scope note: This educational page summarizes Kalway v. Calabria Ranch HOA, LLC, a Arizona Supreme Court HOA-related authority. It is not legal advice.

The takeaway

A general-amendment-power provision in an HOA’s CC&Rs may be used to amend only those restrictions for which the original declaration provided sufficient notice. Because restrictive covenants are construed narrowly to reflect homeowners’ reasonable expectations, non-consensual amendments adopted by majority vote must be reasonable and foreseeable, and A.R.S. § 33-1817(A)—which permits majority-vote amendment when the declaration so provides—does not displace this common-law notice limitation. New restrictions that are entirely different in character from the original covenants and adopted without notice are invalid; the Court blue-penciled the CC&Rs to strike the severable unforeseeable provisions.

Case Participants

Petitioner Side

  • Maarten Kalway (Plaintiff/Appellant/Petitioner)
    Owner of Lot 2, the largest lot (nearly 23 acres); sued to invalidate the 2018 CC&R amendments and prevailed on review, obtaining an award of attorney fees.
  • Gerard R. O’Meara (Counsel)
    Gust Rosenfeld P.L.C.
    Counsel for petitioner Maarten Kalway.
  • Charles W. Wirken (Counsel)
    Gust Rosenfeld P.L.C.
    Counsel for petitioner Maarten Kalway; argued the case.

Respondent Side

  • Calabria Ranch HOA, LLC (Defendant/Appellee/Respondent)
    Arizona limited liability company; the homeowners’ association whose members adopted the challenged CC&R amendments.
  • Mark A. Reid (Defendant/Appellee/Respondent)
    One of the other Calabria Ranch lot owners who voted for the amendments; sued with his wife Florence J. Clark.
  • Florence J. Clark (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner; wife of Mark A. Reid.
  • Edward A. Phlaum (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as co-trustee of the Edward A. and Diane Lyn Phlaum Revocable Trust dated April 10, 2017.
  • Diane Lyn Phlaum (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as co-trustee of the Edward A. and Diane Lyn Phlaum Revocable Trust dated April 10, 2017.
  • Stuart J. Scibetta (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as trustee of the Stuart J. Scibetta Living Trust dated April 1, 2015.
  • Craig L. Cline (Counsel)
    Thompson Krone P.L.C.
    Counsel for respondents Calabria Ranch HOA, LLC and the other lot owners; argued the case.

Neutral Parties

  • Chief Justice Robert M. Brutinel (Judge)
    Authored the unanimous opinion of the Court.
  • Vice Chief Justice Ann A. Timmer (Judge)
    Joined the opinion.
  • Justice Clint Bolick (Judge)
    Joined the opinion.
  • Justice John R. Lopez IV (Judge)
    Joined the opinion.
  • Justice James P. Beene (Judge)
    Joined the opinion.
  • Justice Bill Montgomery (Judge)
    Joined the opinion.
  • Justice Andrew W. Gould (Ret.) (Judge)
    Participated in oral argument but retired before issuance and did not take part in drafting the opinion.

What happened

Calabria Ranch Estates is a residential subdivision of five lots located east of Tucson in Pima County. Maarten Kalway owned Lot 2, which at nearly twenty-three acres was the largest lot; the remaining lots ranged from about 3.3 to 6.6 acres, with two of them jointly owned and together comprising 11.65 acres. All of the lots were subject to CC&Rs first recorded in an original declaration in 2015.

The 2015 original declaration stated that its purpose was to “protect[] the value, desirability, attractiveness and natural character of the Property,” and it allowed the CC&Rs to be amended “at any time by an instrument executed and acknowledged by the [m]ajority [v]ote of the owners.” A majority vote consisted of at least four of the six possible votes; each lot had one vote except Kalway’s lot, which had two.

In January 2018, the other property owners amended the CC&Rs by majority vote without Kalway’s consent or knowledge. The amendments changed some definitions and added others, created new restrictions—including limits on owners’ ability to convey or subdivide their lots, restrictions on the size and number of buildings on each lot, and reductions in the permitted livestock—and enacted new enforcement measures against owners who violated the covenants.

Kalway sued Calabria Ranch and the other owners in Pima County Superior Court, seeking a declaratory judgment to invalidate the amendments. The parties filed cross-motions for summary judgment. The superior court granted them in part and denied them in part, invalidating two sections in their entirety and partially invalidating two more, and found the invalid provisions severable from the rest of the CC&Rs. No party challenged the trial court’s ruling striking those particular provisions.

Kalway appealed, arguing that all of the amendments were invalid without unanimous consent. In a memorandum decision filed March 13, 2020, the Court of Appeals, Division Two, affirmed in a 2-1 decision, relying on Dreamland Villa Community Club, Inc. v. Raimey. The majority concluded that the general-purpose statement in the original declaration was enough to give notice of the amendments. Judge Brearcliffe, concurring in part and dissenting in part, warned that letting a “gauzy statement of purpose” justify any new amendment would render Dreamland’s notice requirement a nullity.

The Arizona Supreme Court granted review because the case raised issues of statewide importance regarding the scope of an HOA’s authority to amend CC&Rs. Reviewing questions of law de novo, the Court held that A.R.S. § 33-1817(A) allows majority-vote amendments but does not displace the common law: the original declaration must give sufficient notice of a future amendment, meaning amendments must be reasonable and foreseeable. It reasoned that CC&Rs are a special type of contract not enforced as to terms beyond the range of reasonable expectation, and that a broad amendment clause and subjective purpose statement could not supply the required notice.

Applying these principles and the “blue pencil” rule, the Court examined each challenged amendment separately. It upheld provisions that merely refined restrictions already foreshadowed (for example, defining “Garage,” which the original declaration had referenced) and struck those that imposed wholly new obligations—dwelling-size limits, an expanded “Improvement” definition affecting setbacks, non-dwelling-structure caps, a mandatory improvement-plan approval process, subdivision and building-sequencing restrictions, a drastic redefinition of “livestock,” and new fire-hazard maintenance duties. The Court reversed in part and remanded, vacated the Court of Appeals’ decision, and awarded Kalway his attorney fees in the Supreme Court and the Court of Appeals.

Kalway is a landmark decision on the outer limits of an HOA’s power to amend its CC&Rs by majority vote. It establishes a statewide common-law rule: a general grant of amendment authority, no matter how broadly worded, lets a majority amend only those restrictions of which the original declaration gave the affected owners fair notice, and any amendment must be reasonable and foreseeable. A vague statement of purpose cannot bootstrap brand-new, non-consensual burdens onto a dissenting minority. The decision cements the notice principle first articulated by the Court of Appeals in Dreamland Villa v. Raimey and confirms that A.R.S. § 33-1817(A)’s authorization of majority-vote amendments does not override that common-law protection. For homeowners, boards, and drafters, the practical takeaway is that amendments introducing categories of restriction the original declaration never mentioned—new architectural-review approval processes, building-size or building-count caps, subdivision prohibitions, or entirely redefined use limits—are vulnerable to challenge if adopted without unanimous consent. Associations that want flexibility to add such restrictions later should say so clearly in the original declaration, and boards should assess whether a proposed amendment merely refines an existing covenant or creates a new one. The Court’s use of the “blue pencil” rule also signals that courts may surgically strike the offending, severable portions of an amendment rather than voiding an entire amendment package, and the fee award to the prevailing owner underscores the litigation exposure of overreaching amendments.

Litigation record

Step 1 2015

Original declaration of CC&Rs recorded for Calabria Ranch Estates, a five-lot subdivision east of Tucson; it includes a general-purpose statement and a general-amendment-power provision permitting amendment by majority vote.

Filed by: Court record

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

Step 2 2018-01

The other lot owners amend the CC&Rs by majority vote, without Kalway’s consent or knowledge, adding new use restrictions, definitions, and enforcement measures.

Filed by: Court record

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

Step 3 2018

Kalway files a declaratory-judgment action in Pima County Superior Court (No. C20181284) seeking to invalidate the amendments.

Filed by: Court record

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

Step 4 2019

On cross-motions for summary judgment, the superior court invalidates two sections entirely and partially invalidates two more, finding the invalid provisions severable; Kalway appeals to the Court of Appeals, Division Two (No. 2 CA-CV 2019-0106).

Filed by: Court record

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

Step 5 2020-03-13

The Court of Appeals, Division Two, affirms in a 2-1 memorandum decision, with Judge Brearcliffe concurring in part and dissenting in part.

Filed by: Court record

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

Step 6 2022-03-22

The Arizona Supreme Court issues its opinion, adopting the notice/foreseeability requirement, blue-penciling the CC&Rs, reversing in part and remanding, vacating the Court of Appeals’ decision, and awarding Kalway his attorney fees.

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/kalway-v-calabria-ranch-hoa/raw/: 28 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2019-07-09

Civil Fees Order

Type: Court order/minute entry

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

Download source file
2019-07-09_001_civil-fees-order.pdf
Source 2 2019-07-10

Appellant Fee Receipt

Type: Court/source PDF

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

Download source file
2019-07-10_002_appellant-fee-receipt.pdf
Source 3 2019-07-16

Notice Of Appearance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2019-07-16_003_notice-of-appearance.pdf
Source 4 2019-08-29

Opening Brief

Type: Briefing paper

Opening merits brief; this is where the appellant or moving party frames the legal argument.

Download source file
2019-08-29_004_opening-brief.pdf
Source 5 2019-09-04

Cross Appellant Fee Receipt

Type: Court/source PDF

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

Download source file
2019-09-04_005_cross-appellant-fee-receipt.pdf
Source 8 2019-11-08

Answering Brief

Type: Responsive pleading

Responding party’s first substantive response to the complaint or petition.

Download source file
2019-11-08_008_answering-brief.pdf
Source 9 2019-12-02

Reply Brief

Type: Briefing paper

Reply paper; usually the final written response before the court takes the issue under advisement.

Download source file
2019-12-02_009_reply-brief.pdf
Source 10 2019-12-02

Request For Oral Argument

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2019-12-02_010_request-for-oral-argument.pdf
Source 11 2020-01-09

Order Setting Oral Argument

Type: Court order/minute entry

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

Download source file
2020-01-09_011_order-setting-oral-argument.pdf
Source 12 2020-01-09

Order Oral Argument Granted

Type: Court order/minute entry

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

Download source file
2020-01-09_012_order-oral-argument-granted.pdf
Source 13 2020-01-10

Oral Argument Acknowledgment

Type: Court/source PDF

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

Download source file
2020-01-10_013_oral-argument-acknowledgment.pdf
Source 14 2020-02-05

Oral Argument Sign In Sheet

Type: Court/source PDF

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

Download source file
2020-02-05_014_oral-argument-sign-in-sheet.pdf
Source 16 2020-03-23

Statement Of Costs

Type: Court/source PDF

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

Download source file
2020-03-23_016_statement-of-costs.pdf
Source 17 2020-03-23

Cline Affidavit Supporting Costs

Type: Procedural/service filing

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

Download source file
2020-03-23_017_cline-affidavit-supporting-costs.pdf
Source 18 2020-03-27

Motion For Publication

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2020-03-27_018_motion-for-publication.pdf
Source 21 2020-04-03

Reply Supporting Costs

Type: Briefing paper

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

Download source file
2020-04-03_021_reply-supporting-costs.pdf
Source 25 2020-05-06

Order Denying Publication

Type: Court order/minute entry

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

Download source file
2020-05-06_025_order-denying-publication.pdf
Source 26 2020-05-12

Order Awarding Fees And Costs

Type: Court order/minute entry

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

Download source file
2020-05-12_026_order-awarding-fees-and-costs.pdf
Source 27 2022-03-22

Arizona Supreme Court Opinion

Type: Decision or judgment

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

Download source file
2022-03-22_110_arizona-supreme-court-opinion.pdf
Source 28 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 the Arizona Supreme Court decide in Kalway v. Calabria Ranch HOA?

The Court held that a general-amendment-power provision in an HOA’s CC&Rs lets a majority amend only those restrictions for which the original declaration gave owners sufficient notice. Amendments must be reasonable and foreseeable, so wholly new restrictions adopted by majority vote without notice are invalid. The Court struck the offending amendments and awarded the challenging owner his attorney fees.

Can an HOA add any new restriction it wants by majority vote?

No. Even a broad “amend at any time by majority vote” clause does not let a majority impose brand-new burdens on a dissenting minority. Under Kalway, an amendment must refine, correct, fill a gap in, or change a covenant the original declaration already put owners on notice of; it cannot be “entirely new and different in character” and untethered to an existing covenant.

What is A.R.S. § 33-1817(A), and did it decide the case?

A.R.S. § 33-1817(A) permits amending CC&Rs by majority vote when the original declaration provides for that voting scheme. The Court held the statute does not displace the common law, which still bars some amendments even if the required majority approves. So the statute authorizes majority-vote amendments but does not eliminate the notice-and-foreseeability requirement.

What is the “blue pencil” rule the Court used?

Blue-penciling means a court strikes the grammatically severable, unreasonable portions of a restrictive covenant while leaving the valid language intact, rather than voiding an entire amendment. The Court used it to delete the unforeseeable words and whole sections from several Calabria Ranch amendments while preserving the parts that were valid.

Which amendments survived and which were struck?

The Court upheld amendments that merely refined restrictions already foreshadowed—for example, defining “Garage,” a term the original declaration had referenced. It struck new, unforeseeable provisions, including dwelling-size limits, an expanded “Improvement” definition affecting setbacks, non-dwelling-structure caps, mandatory improvement-plan approval, subdivision restrictions, a drastic redefinition of “livestock,” and new fire-hazard maintenance duties.

What does Kalway mean for Arizona homeowners and HOA boards?

Homeowners gained a strong defense against non-consensual amendments that introduce restrictions the original CC&Rs never mentioned. Boards and drafters should state clearly in the original declaration if they want the ability to add particular restrictions later, and should assess whether a proposed amendment refines an existing covenant or creates a new one. Because the prevailing owner was awarded attorney fees, overreaching amendments also carry litigation risk. This is general information, not legal advice.

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 / citation252 Ariz. 532; 506 P.3d 18 (2022)
Court / tribunalArizona Supreme Court
Decision / key dateMarch 22, 2022
Judge / panelChief Justice Robert M. Brutinel (author), Vice Chief Justice Ann A. Timmer, Justice Clint Bolick, Justice John R. Lopez IV, Justice James P. Beene, Justice Bill Montgomery, Justice Andrew W. Gould (Ret.) (participated at oral argument only; retired before issuance and did not join the opinion)
PartiesIndividual lot owner Maarten Kalway challenged Calabria Ranch HOA, LLC and the other lot owners over whether they could impose new CC&R restrictions on him by majority vote without his consent.
Governing law
Topics
cc-and-rsamendmentscovenantsattorneys-feesprocedure
Outcome / holding

A general-amendment-power provision in an HOA’s CC&Rs may be used to amend only those restrictions for which the original declaration provided sufficient notice. Because restrictive covenants are construed narrowly to reflect homeowners’ reasonable expectations, non-consensual amendments adopted by majority vote must be reasonable and foreseeable, and A.R.S. § 33-1817(A)—which permits majority-vote amendment when the declaration so provides—does not displace this common-law notice limitation. New restrictions that are entirely different in character from the original covenants and adopted without notice are invalid; the Court blue-penciled the CC&Rs to strike the severable unforeseeable provisions.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package28 PDFs
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

Kalway v. Calabria Ranch HOA, LLC arose from Calabria Ranch Estates, a five-lot residential subdivision east of Tucson governed by covenants, conditions, and restrictions (CC&Rs) first recorded in a 2015 original declaration. That declaration allowed the CC&Rs to be amended “at any time” by a majority vote of the owners. In January 2018, the other lot owners amended the CC&Rs by majority vote, without the consent or knowledge of Maarten Kalway, who owned Lot 2, the largest lot at nearly twenty-three acres. The amendments changed and added definitions, created new use restrictions—limiting owners’ ability to subdivide or convey lots, restricting the size and number of buildings, and reducing permitted livestock—and added new enforcement measures. Kalway sued for a declaratory judgment to invalidate the amendments, arguing they required unanimous consent. On cross-motions for summary judgment the superior court struck some provisions and upheld others, and a divided Court of Appeals largely affirmed. The Arizona Supreme Court granted review to resolve the statewide question of an HOA’s authority to amend CC&Rs. Construing restrictive covenants narrowly to reflect homeowners’ reasonable expectations, the Court held that a general-amendment-power provision permits amendment only of restrictions for which the original declaration gave sufficient notice; amendments must be reasonable and foreseeable, and a broad general-purpose statement does not supply notice of wholly new restrictions. The Court reaffirmed the notice principle of Dreamland Villa v. Raimey and confirmed that A.R.S. § 33-1817(A) does not displace this common-law limitation. Applying the “blue pencil” rule, it struck the severable unforeseeable restrictions, reversed in part, remanded, vacated the Court of Appeals’ decision, and awarded Kalway his attorney fees.

Key Issues & Findings

The Court reasoned that CC&Rs form a contract among all landowners bound by the restrictions, but they are a special type of contract that will not be enforced as to “unknown terms which are beyond the range of reasonable expectation.” Although A.R.S. § 33-1817(A) permits majority-vote amendment when the original declaration provides for it, that statute does not displace the common law, which bars some amendments even when passed by the required majority. Notice turns on the original declaration in effect when the owner purchased: an amendment must give notice that a covenant exists and can be refined, corrected, or changed in a particular way, but it cannot be “entirely new and different in character” and untethered to an original covenant. Because a broad general-amendment-power provision and a subjective general-purpose statement (to “protect the value, desirability, attractiveness and natural character of the Property”) would supply limitless justification for new restrictions, they cannot alone provide the required notice. Applying an objective test, the Court analyzed each challenged amendment individually, striking those that imposed wholly new obligations—expanded setback and “Improvement” definitions, non-dwelling-structure caps, a mandatory improvement-plan approval process, subdivision restrictions, a drastic redefinition of “livestock,” and new fire-hazard duties—while upholding amendments, such as the definition of “Garage,” that merely refined restrictions already foreshadowed by the original declaration.

Why It Matters

Kalway is a landmark decision on the outer limits of an HOA’s power to amend its CC&Rs by majority vote. It establishes a statewide common-law rule: a general grant of amendment authority, no matter how broadly worded, lets a majority amend only those restrictions of which the original declaration gave the affected owners fair notice, and any amendment must be reasonable and foreseeable. A vague statement of purpose cannot bootstrap brand-new, non-consensual burdens onto a dissenting minority. The decision cements the notice principle first articulated by the Court of Appeals in Dreamland Villa v. Raimey and confirms that A.R.S. § 33-1817(A)’s authorization of majority-vote amendments does not override that common-law protection.

For homeowners, boards, and drafters, the practical takeaway is that amendments introducing categories of restriction the original declaration never mentioned—new architectural-review approval processes, building-size or building-count caps, subdivision prohibitions, or entirely redefined use limits—are vulnerable to challenge if adopted without unanimous consent. Associations that want flexibility to add such restrictions later should say so clearly in the original declaration, and boards should assess whether a proposed amendment merely refines an existing covenant or creates a new one. The Court’s use of the “blue pencil” rule also signals that courts may surgically strike the offending, severable portions of an amendment rather than voiding an entire amendment package, and the fee award to the prevailing owner underscores the litigation exposure of overreaching amendments.

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