LIMITS OF AMENDMENT AUTHORITY

• In Kalway v. Calabria Ranch HOA, the Supreme Court of Arizona ruled that the original declaration [must] give fair notice of any enacted amendment.  EXAMPLE:

  • ¶41 Newly added § 7.2 is invalid. Under this new requirement, owners must maintain their properties such that dried undergrowth is less than one-foot high and all fallen deadwood longer than three feet is cut into six-inch-or-less pieces. As the court of appeals' partial concurrence and dissent noted, while this provision might be advisable to prevent wildfires, no language in the original declaration put property owners on notice that fallen branches on their property would later be regulated by the CC&Rs. Kalway, 2020 WL 1239831, at *10 ¶ 38 (Brearcliffe, J., concurring in part and dissenting in part). We strike § 7.2 in its entirety.

  • N.B.  Blue-penciling by courts differs by state

FREE SPEECH IN ASSOCIATION LIVING

• Following yet another case where freedom of expression plays the protagonist, our Free Speech page has been significantly updated to what I hope you agree is the most comprehensive coverage of the topic for CICs anywhere.

• Lessons learned from Spiegel v. 1618 Sheridan Road COA:

  • waivers are forever

  • don't waive your rights to expression and free speech unless you fully understand the repercussions

  • courts readily enforce settlements

GET YOUR ACT TOGETHER

• Lessons learned from Stack v. 4325-27 North Hazel COA:

  • Don't attempt to conduct business without a quorum

  • Courts can and will appoint receivers to manage the affairs of CICs that cannot get their arms around working effectively for the benefit of the organization

DUTY OF ... SAFETY?

• Lessons learned from Villages of Cascade HOA v. Edwards:

  • Is your CIC obligated to provide for the safety of your members and residents?

  • "Exactly what constitutes `ordinary care' varies with the circumstances and the magnitude of the danger to be guarded against. . . . But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm."  This means that "[a]lthough a landowner has a duty to invitees to exercise ordinary care to keep its premises safe, the landowner is not an insurer of an invitee's safety." - prior GA case citations