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HOA want to totally eliminate all Rental

I live in a small townhouse community in Scottsdale of 42 homes. The HOA board at the insistence of one member, has had the HOA attorney draft an amendment to the CC&Rs to eliminate all rentals. The current rental term limitation is 12 months. It is my understanding that in order to pass a complete elimination of all rentals would require a unanimous vote of the homeowner but the Board believes it only requires the 2/3rd supermajority as with other changes to the CC&Rs. Do you have any thoughts and do you know experienced lawyers in Phoenix that could research this issue for me. Thank you

2 Responses

  1. dennisl

    Daniel,

    Because your CC&R’s already restrict rentals you would be allowed to change the time limit for that restriction either shorter or longer by the supermajority, but you cannot eliminate all rentals without unanimous consent. Any homeowner reading your prior restrictions has a right to presume that they could rent their unit within the limitations of the declaration. To eliminate that capability would require the consent of everyone using that provision today. This would be considered a material change to the governing documents. A supermajority cannot decide how someone can use their home under both property servitude law and contract law.

    Dennis

  2. dennisl

    Daniel,

    The Condominium statute has a specific provision in law that describes this issue. ARS 33-1227 subsection D states
    “Except to the extent expressly permitted or required by other provisions of this chapter, an amendment shall not create or increase special declarant rights, increase the number of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.”
    This would come under ” the uses to which any unit is restricted”. This would apply for Planned communities as well under the rules for statutory construction and Arizona Case Law.
    Dennis

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