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Arizona Real Estate Law
by Christopher A. Combs
The following is for informational purposes
only and is not intended as definitive legal or tax advice. You
should not act upon this information without seeking independent
legal counsel. If you desire legal, tax or other professional advice,
please contact your attorney, tax advisor or other professional
consultant.
CC&Rs Restrict "Use" of Toy Basketball Hoop
Question: I recently purchased a home in a planned community in Scottsdale. This planned community is still under development and as a result, there are construction vehicles, port-a-johns, and construction equipment everywhere. Despite this "construction battleground" atmosphere, I recently received a violation notice from my homeowners association claiming that my son's play basketball hoop had not been stored away when "not in use." The definition under our CC&Rs of "not in use" is "not being played with." In other words, if my son decides to ride his bike, play soccer, or go inside to eat lunch, the play basketball hoop must be put away. Most new home buyers in Arizona like myself have no choice but to belong to homeowners associations and agree to be regulated by CC&Rs. Is there not some limit, however, on this type of regulation? P.S. The CC&Rs prohibit individual homeowners from having external stereo speakers, but the homebuilder for our planned community has external stereo speakers in its model homes. Go figure!
Answer:The regulation of a planned community by a homeowners association through recorded Covenants, Conditions, and Restrictions ("CC&Rs") is private regulation. In other words, federal, state, and local government generally have no involvement unless the CC&Rs violate Fair Housing laws. The theory is that private homeowners can contract among themselves to regulate themselves, and that this type of private regulation should be encouraged. As a practical matter, however, the developer of the planned community (whose interest in marketing homes may not be compatible with the interests of the individual homeowners) records the original CC&Rs which potential home buyers in that planned community must either agree to comply with or "hit the highway" and buy a home somewhere else. In your situation I would suggest that you review the amendment provisions of your CC&Rs. Most CC&Rs provide that a certain percentage of the homeowners at certain times can amend the CC&Rs. After you determine what the amendment provisions are in your CC&Rs, you should gather support for amendment of those CC&Rs from the other homeowners in your planned community.
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