Published January 25, 2021

Chris Combs On Amendments To CC&Rs Being Enforceable Against Existing Homeowners

Written by Shanna Day Team

Chris Combs On Amendments To CC&Rs Being Enforceable Against Existing Homeowners header image.

From the advice of one of our preferred Attorneys, Mr. Chris Combs of Combs, Gottlieb & MacQueen, P.C.:

Question: In a recent column you said that, if the required majority of homeowners, e.g., 51% of the homeowners, vote to amend the Covenants, Conditions, and Restrictions ("CC&Rs") to prohibit short-term rentals, then such restrictions would be enforceable against all homeowners. I understand that when a buyer purchases a home, that buyer must comply with the existing CC&Rs. Any amendment to the CC&Rs, however, should only apply to a buyer who purchases a home after the amendment to the CC&Rs. Existing homeowners should be "grandfathered," and not required to comply with any amended CC&Rs. To carry your argument to the extreme, if 51% of the homeowners vote to amend the CC&Rs to require that all homes be painted "hot pink," then an existing homeowner who purchased a home before the amendment to the CC&Rs would now be required to paint their home "hot pink." Is that correct?

Answer: Yes. First, CC&Rs are private regulation of all homeowners who purchase homes in the community. Even if the homeowner, at the time of purchasing the home, has no actual knowledge of all of the provisions in the CC&Rs, the recording of the CC&Rs is constructive knowledge to the homeowner of all of the provisions in the CC&Rs, including the provision to amend the CC&Rs. Therefore, if the CC&Rs are properly amended to require all homeowners to paint their homes "hot pink," that amendment is enforceable against all homeowners, including existing homeowners.

Note: Many communities in the Valley have CC&Rs that require the homes in the community to be properly maintained, including re-painting to a specific color, in order to protect property values in the community. The HOA usually gives the homeowners a lengthy period of time to complete the re-painting, and the HOA might even financially assist any homeowner who is short of funds to do the re-painting.

Amendments to the CC&Rs of condominium communities are different than amendments to CC&Rs of planned communities of single-family homes. Any amendment in the CC&Rs of a condominium community restricting the uses of a condominium requires approval of all condominium owners. A.R.S. §33-1227(D).

Note: More Information. Real-estate attorney Christopher A. Combs

Chris was born in Windsor, England, and lived in Germany and the Philippines before coming to the United States. He attended Arizona State University and graduated cum laude with a Bachelor of Science degree. Chris then received a J.D. degree from the University of Arizona Law School where he was a member of the Law Review.

After law school Chris was a Captain, JAG, in the United States Marine Corps. Chris was an honors graduate of the Naval Justice School in Newport, Rhode Island. Chris was also stationed in Quantico, Virginia and Camp Pendleton, California.

Chris has 20+ years of experience as a real estate broker, and as a State Bar certified real estate specialist. Chris is a former President of the Maricopa County Bar Association and a former President of the Phoenix Symphony Council.

Chris formed and operated the Arizona Association of Realtors ("AAR") Legal Hotline program which received a 90% approval rating from Arizona real estate brokers every year for more than 20 years. The AAR Legal Hotline program was the model for Legal Hotline programs in Colorado and Minnesota. Chris drafted the original nine-page AAR Residential Resale Real Estate Purchase Contract.

Chris writes a Sunday column in The Arizona Republic newspaper on real estate questions and answers.

Chris has lectured in Asia, Mexico, and Canada on the Foreign Investment in Real Property Act and other aspects of foreign investment in Arizona real estate. Chris has represented foreign investors in Arizona real estate from Asia, Mexico, and Canada.

Chris is a former member of the Pittsburgh Pirates minor league baseball organization, and was selected to the All-Marine Corps basketball team.