AZ Supreme Court Decision
Our HOA revised CC&Rs in 2019. The previous CC&Rs from 1998 were only six pages total. The 2019 Revisions expanded to 27 pages with multiple additions that did not exist in the 1998 version.
Based on the Arizona Supreme Court decision Kalway v. Calabria, how might we proceed to have the 2019 revisions removed?
Thanks!
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Margaret,
While I responded to your direct question via e-mail I’ll repeat that response here for the benefit of all homeowners.
Because an amendment increases the size of a document is not the issue , it is what specifically changes that is covered in the amendment is what is important. The issue in point is that the association has no right to create new restriction or materially change existing restriction on the use or occupancy on private property that could not have been reasonably foreseen from the original CC&R’s, without unanimous consent. To challenge the validity of an amendment you must first determine if any provision in that amendment violated that precise limitation. The right to challenge that amendment (cause of action) can only be brought by someone you opposed that amendment. If you voted for it you forever give up the right to challenge that amendment in the future. That is why I’ve repeatedly advised people that if they have any doubts about a CC&R amendment they must vote “NO”.
If you believe that the amendment is invalid and you have a cause of action (did not approve the amendment) then you must get an attorney and file suit in Superior Court against the association for the invalid amendment to the CC&R’s. The Supreme Courd decision in Kalway will go a long way in helping your case but you would have the burden of proof so do not take this on lighly, or for trivial issue. Even if your prevail in this case you will only get removed the provisions that directly violate the unanimous consent premise. Do not underestimate the financial cost of such a case, you must realize that if the association believes they will lose the case they will attempt to file motion after motion to force your attorney to respond simply to drive the cost of this litigation thru the roof hoping that you would be forced to drop the case because you can no longer afford it.
Dennis