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CC&R Ammendment

I live in a community in Arizona with CC&R from 1966 but no HOA, and we (the community) recently voted to amend them to restrict sort term rentals. The original CC&Rs included the following language describing the process to renew and amend them:

“These covenants are understood and agreed to be, and shall be taken and held to be, for the benefit of all lot owners, be they such now or become such hereafter I and all covenants herein contained attach to the land and run with the title thereto, and shall be binding on all owners of lots in said XXXXXX ESTATE NUMBER ONE until .January 11 1977, at which time said covenants shall be automatically extended for successive ten-year periods, unless by a vote of a majority of the then owners of the lots it is agreed to change said covenants in whole or in part.”

After we recorded the CC&R Amendment we received a response from one of the lot owners attorney stating that “Presently, the Declaration of Restrictions of XXXXX Estates Number One dated December 9, 1966 (the “CC&R”) contains the exact language for extension and amendment as the Court of Appeals in Scholten decided would not become effective until the next renewal period.”

The cases that they cited were Scholten v. Blackhawk Partners and Rensel v. Pinnacle Homeowners, which are from 1994 and 2009, respectively. My question is if anyone knows if there have been any more recent cases that changed or modified the process of enacting a CC&R Amendment in the middle of a ten-year period?

Thanks in advance for your reply.

2 Responses

  1. DennisL

    David

    If you have a recorded CC&R and mandatory assessments, you are an HOA or planned community so your comment about “no HOA” is confusing.
    Many older association CC&R’s had similar language implying that Amendment to the CC&R’s could only be implemented in proximity of the renewal dates or intervals. Arizona Law was changed to specifically identify that CC&R amendments could be implemented upon approval and the recording of that amendment. The specific statute is ARS 33-1817. section 4 the exact language of the statute is:

    4. Notwithstanding any provision in the declaration that provides for periodic renewal of the declaration, an amendment to the declaration is effective immediately on recordation of the instrument in the county in which the property is located.

    So those prior case precedents have been nullified by statute. Similar language is also contained in the Condominium Act.

    Dennis

  2. David Abranovic

    Hi Dennis,

    Thank you for your thougtful reply, very helpful. With respect to my statement of “no HOA”, it is my understanding that our community does not meet the deffinition of a “planned community”, i.e. we have no community managed/owned common areas, therefore my understanding is the Arizona Planned Communities Act, or Title 33, Chapter 16 is not applicable to our community. If that is the case would ARS 33-1817. section 4 still apply to us?

    David

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