Homeowners associations, or HOA’s as they are commonly referred to, are governed by Arizona Revised Statutes Title 33 Chapter 16 under planned communities. These statutes deal with various components such as Penalties, open meetings, exceptions, financial and other records to name a few. Although these statutes exist, oversight is often minimal. Most homeowners find themselves dealing with their HOA in regards to the codes, covenants and restrictions, or more commonly known as the “CC&R’s.” The CC&R’s are restrictive covenants that “run with the land” and thus, if one member sells a home he is no longer part of the association and the new owner takes his place, and is subject to the restrictions that attach as well.
All homeowners in a given development have to follow the restrictions set forth in the CC&R’s. The general purpose for HOA’s is to protect the property value of the owners. However, this often comes at the expense of abdicating rights a homeowner would otherwise have control over. Things like home color, landscaping, additional structures and even parking. HOA’s have control over most aspects of ownership and the have many methods to enforce these restrictions including the threat, or actual levying of fines, liens and legal action against an individual homeowner. Given the broad powers of an HOA to enforce its goals, an individual homeowner can be faced with a daunting task of defending themselves if the association deems them to have run afoul of the CC&Rs.
If an HOA is trying to enforce restrictive covenants on you as a homeowner, it is important to know what they can do, and perhaps more importantly, what they can’t. Most HOA’s have general review or architectural design committees charged with the task of making sure homeowners requests are in line with the CC&R’s. When an HOA seeks to enforce a restriction, it must do so in good faith and not act in a manner that is arbitrary or capricious. Moreover, the enforcement procedures must be fair and applied uniformly to all homeowners.
While an HOA does have discretion in enforcing selective covenants, they must do so in a manner that is reasonable and in good faith. HOA’s cannot pick and choose which restrictions to enforce and who to enforce them against. Enforcement must be based on reasons that are rationally related to protecting the interests of the association. Moreover, enforcement must be uniformly applied in a manner that is not arbitrary or capricious. Dealing with an HOA can be a challenging and intimidating experience for a homeowner. Often times homeowners comply with demands that are not enforceable because they believe they have no other recourse. While HOA’s do have latitude in enforcing restrictive covenants, that latitude is not without limits and there are many case where that power has been abused.
If your HOA is attempting to enforce a restrictive covenant without cause, just remember, just because the association says a homeowner is in violation, doesn’t necessarily mean it is true. A careful analysis should be conducted by a knowledgeable attorney to determine your rights. Platt & Westby has offices in Phoenix, Arrowhead, Litchfield Park, Scottsdale and Gilbert Arizona. If you are interested in discussing more, please contact our office by calling 602-277-4441 or www.plattwestby.com for a free consultation with one of our experienced attorneys.