Because It’s the Rules
June 20, 2015
Written by: David Allen
Patners in the Phoenix Law Firm, Jaburg & Wilk
There are seemingly two types of people who live in houses or condominiums that are subject to rules and regulations, known as Codes, Covenants and Restrictions, or “CC&R’s.” There are those who live there because there are CC&R’s, and there are those who live there despite the fact that there are CC&R’s. The concept behind CC&R’s is quite simple. If a group of people who own property within a certain designated area wish to assure that everyone within that area abide by the same set of rules, they may specify those rules in a written document, known as CC&R’s, which is recorded against the title of the properties of each of the affected owners. Of course, as a practical matter, the contents of the CC&R’s is seldom the result of decisions made by the parties who are bound by them, but rather are created by the developer of the properties that are affected.
The underlying theme of all CC&R’s is consistency. Thus, for example, the CC&R’s will almost always include controls over such matters as the size, height and exterior color of a home. They will often also include restrictions on everything from how close a home can be to the adjoining property to whether it is allowable to park a car overnight in the street in front of your own home. As I learned, much to my dismay, shortly after buying my first townhome shortly after graduating for law school, they can also include restrictions on such seemingly trivial matters as the color of the clothes that one must wear while using the common area tennis courts. When I was stopped by one of those omnipresent “CC&R’s enforcers” the first time I went to play tennis, before I could enter the court with my then fashionable blue tennis outfit, and had the audacity to question “the enforcer” about the logic of the prohibition, I was given the “explanation” in a loud indignant voice: “BECAUSE IT’S THE RULES,” which I guess explained it all.
Other than obviously prohibited restrictions dealing with such matters as race, religion, or gender, the possible restrictions that can be imposed by CC&R’s is limited only by the imagination of the drafter. So what happens then, when one of those people who do not take well to abiding by rules, in particular rules that they think should not exist, run up against one of their fellow owners who take those same rules very seriously, and insist upon them being enforced.
I recently represented a homeowner’s association in a lawsuit that arose out this very type of all-too-common dispute. Homeowner X decided to build her pool closer to her neighbor’s property than allowed by the CC&R’s. While the HOA had no problem with allowing the rules to be bent given the circumstances, the affected neighbor, Homeowner Y, was outraged that the rules were being violated, and filed a lawsuit against both X for building her pool, and against the HOA for its failure to enforce the CC&R’s as against X. At the conclusion of prolonged litigation, the Court ruled in favor of Y on its claims against X, issuing a judgment forcing X to remove her pool. The Court also ruled against Y on its claims against the HOA, ruling that although the HOA had the right to enforce the CC&R’s against X, it was not obligated to do so. All of which, once again proved that the CC&R’s are the rules, and that the rules must be followed.
David Allen, a partner in the Phoenix law firm of Jaburg & Wilk, has been representing clients in both transactional and litigation real estate and business related matters for over thirty years. David is licensed as an attorney in both Arizona and California, and is also a licensed Arizona real estate broker. David can be reached at 602.248.1082 or at email@example.com.
This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.