Arizona has thousands of homeowners associations and the homeowners who live in communities governed by HOAs understand that if they fail to follow the restrictions set forth in the association’s governing documents, which usually include a Declaration of Covenants, Conditions, and Restrictions, or CC&Rs.
Living in a community governed by an HOA can be a blessing or a curse, and some homeowners go out of their way to avoid buying property in communities that are in an HOA. By doing so, homeowners avoid the fees and assessments that go along with an HOA and they believe they are free to do whatever they want with their property - but that is not always the case.
I frequently meet with homeowners who are surprised to learn that although their community does not have an HOA, there are still CC&Rs that restrict how their property can be used. This is fairly common in older rural communities and even in some smaller neighborhoods in or near Phoenix and Tucson. In many cases the CC&Rs do not provide for the establishment of an HOA, but they are recorded as deed restrictions that restrict all the homeowners in a described community from doing things that violate the enumerated restrictions. In other cases, the CC&Rs may have provided for the establishment of an HOA with a board of directors and requiring payment of assessments, but at some point the board disbanded, fees went uncollected, and there is no longer a functioning homeowners association. Even where the HOA is no longer operative, however, the deed restrictions set forth in the CC&Rs may still apply.
The first place to look to determine whether there are valid CC&Rs that might impact your property is the title report you receive when you purchase a property. That report should list exceptions to title that include things like CC&Rs, easements, or other so-called clouds on title that may impact your use of the property. Assuming the CC&Rs were properly recorded, these should be identified on a title search and they usually constitute valid restrictions that property owners must adhere to.
Often, CC&Rs that do not provide for an operating HOA are fairly limited and only include restrictions such as building setbacks, the kinds of livestock or other animals allowed in the community, and other restrictions against certain land uses.
But absent an operating HOA, who enforces the CC&Rs if a homeowner is violating the terms and conditions in the recorded document? The answer is that any affected homeowner who is also bound by the CC&Rs can seek to enforce the CC&Rs. Arizona courts have confirmed that CC&Rs are a contract between all the homeowners bound by the CC&Rs, so any other homeowner has the right to file a lawsuit to enforce that contract.
It is often the case that homeowners accused of violating CC&Rs by other homeowners may not have even been aware that the CC&Rs existed. This is especially common where a property was acquired via a foreclosure sale or some informal purchase transaction that did not involve a title report. But if the CC&Rs were properly recorded, a homeowner is still bound by their terms.
Notwithstanding the above, in many cases there are valid defenses homeowners may have to efforts to enforce CC&Rs, especially where they may not have been enforced for a long period of time and/or may have simply be determined to have been abandoned due to a lack of enforcement or changed circumstances. Whichever side of the dispute you may fall on, it is important to talk to an experienced HOA attorney about your rights and obligations as a homeowner.