Background
Stephanie Burkett and John and Anita Dryja own neighboring patio homes in Moondance Estates, a Tucson community governed by recorded covenants, conditions, and restrictions. In 2021, the Dryjas replaced and repositioned an air-conditioning unit. Burkett alleged that its noise and vibrations interfered with her use of her home, particularly her bedroom.
Burkett sued the Dryjas and the homeowners association, alleging that the unit violated the CC&Rs’ anti-nuisance provision and seeking injunctive relief, damages, and fees. After a bench trial, the superior court ruled for the Dryjas and the association on all claims. It awarded the association fees but denied fees to the Dryjas, concluding that Burkett’s claim against them was essentially a tort nuisance claim that could have been brought without the CC&Rs. The court of appeals affirmed.
The Court’s Holding
The Arizona Supreme Court vacated the court of appeals’ decision, reversed the denial of the Dryjas’ fees, and remanded for the superior court to determine their reasonable fees. It held that the recorded anti-nuisance covenant was an enforceable contractual obligation between individual owners, even though nuisance law independently imposes similar duties.
The court held that the statutory “arising out of contract” and “but-for” analysis under A.R.S. § 12-341.01 did not govern because the Dryjas sought fees under the CC&Rs’ express fee provision. Burkett instituted an action to enforce the CC&Rs and sought the remedies the declaration provided; because the Dryjas prevailed on every claim against them, the provision mandatorily entitled them to reasonable attorney fees and appellate fees and costs.
Key Takeaways
- Recorded CC&Rs can create enforceable contractual rights and obligations directly among homeowners.
- A covenant remains enforceable in contract even when the prohibited conduct may also constitute a tort.
- Where CC&Rs mandate fees for prevailing parties in enforcement proceedings, courts apply that contractual language rather than the statutory “but-for” test.
Why It Matters
The decision confirms that Arizona courts must enforce clear HOA fee-shifting provisions as written. Homeowners who bring CC&R enforcement claims—and owners defending them—face the contractual consequences of prevailing or losing, including when the alleged conduct overlaps with common-law nuisance claims.