Unreasonable CC&R
HOA Unreasonable and or Unconscionable CC&R, has the Arizona Superior Count addressed this issue?
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Joseph,
While common law establishes that any unconscionable restriction or covenant included in the declaration is invalid and unenforceable the the appellate or Supreme Court has never specifically established as case law the validity provisions of the restatement of law property servitudes section 3.1 into case law for Arizona. The court has applied this concept to individual and specific cases based on the facts of that case alone. If a specific provision of the declaration is challenged on the basis that it is unconscionable and you are able to prove that point then you will get the ruling that you seek from the court, but remember the burden of proof is yours. The associations does not have to prove that it is legitimate.
Dennis
Thank You Dennis, understood burden of proof is on the petitioner. Was rooting around Nevada Revised Statutes looking at another issue running across this: TITLE 10 – PROPERTY RIGHTS AND TRANSACTIONS; Chapter 116 Common-Interest Ownership (Uniform Act) 116-1112 Unconscionable agreement or term of contract. https://www.leg.state.nv.us/nrs/NRS-116.html#NRS116Sec1112 : I had been looking for cases nationwide off and on for a bit under UNREASONABLE therefore UNENFORCEABLE. The Nevada statute introduced me to UNCONSCIONABLE that translates to unreasonable.
Joseph,
Unconscionable provisions have long been a condition of fundamental contract law for this country. When applied to the covenants that govern these communities the criteria for the validity of any provision in the declaration is defined in the Restatement of law property servitudes section 3.1.
ALL COVENANTS ARE VALID AND ENFORCABLE UNLESS THEY ARE ILLEGAL, UNCONSTITUTIONAL OR VIOLATES PUBLIC POLICY.
(a) COVENANTS THAT ARE INVALID BECAUSE THEY VIOLATE PUBLIC POLICY INCLUDE, BUT ARE NOT LIMITED TO:
1) A COVENANT THAT IS ARBITRARY, SPITEFUL, OR CAPRICIOUS.
2) A COVENANT THAT UNREASONABLY BURDENS A FUNDAMENTAL CONSTITUTIONAL RIGHT.
3) A COVENANT THAT IMPOSES AND UNREASONABLE RESTRAINT ON ALIENATION.
4) A COVENANT THAT IMPOSES AN UNREASONABLE RESTRAINT ON TRADE OR COMPETITION.
5) A COVENANT THAT IS UNCONSCIONABLE.
Dennis