INTRODUCTION t
SEARCH
TERMS tARIZONA STATE
STATUTES t BOOKS
DEFINITIONS t
JOURNAL ARTICLES t ARIZONA
CASE LAW t FEDERAL/UNIFORM
ACTS
LEGAL ENCYCLOPEDIAS t
OTHER
STATES t
WEB LINKS
t
CONTEMPORARY ISSUES
Community Associations have become a widespread phenomenon in recent years. By the end of the 1980s there were more than 130,000 residential community associations operating in the United States and more than 30 million Americans subject to their governance. Predictions are that at least fifty million Americans will be living in some form of common interest community by the turn of the century, since one our of every three housing units being built has some form of governing association.
Associations have become an integral part of life. Association rules, regulations, conditions and restrictions bind not only the first buyers, but all subsequent owners as well, and they are enforced by a board of directors. In addition to providing for maintenance of the common areas that all members of the community have a right to use, these rules, regulations, conditions and restrictions set up a governing structure than can make binding rules on lifestyle issues ranging from the ubiquitous "no pet" covenants to prohibitions on political signs or even requiring certain colored curtains in the windows. Common interest communities form an alternative political universe whose residents may lack many of the rights that Americans have come to regard as fundamental.
Community Associations come in two basic categories: those which govern conventional subdivisions of houses or townhouses, and those which are formed in connection with condominiums. While there are some differences in how various statutes apply to these two different types of associations, by and large most statutes and principles apply to both types, so they will be treated together in this pathfinder. In states other than Arizona, however, the differences might be greater, so it is important to check how various statutes apply in each jurisdiction.
If you have any questions or comments about this pathfinder, please e-mail me.
1. What is a community association?
Basically, a community association is a governing structure created to enforce the rules or "covenants" which have been created in a residential subdivision, which all property owners have agreed to abide by. Such covenants cover restrictions on what type of improvements can be made, what uses the property is restricted to, how many pets each unit is allowed to have, or what house colors are allowed. The rules created by these covenants can vary tremendously depending on the nature of the subdivision. The covenants or other documents will generally provide for a committee or board of directors that is responsible for approving proposed alterations of the properties, and who is also in charge of ensuring that the covenants are followed by all residents. Since community association boards are generally given very broad and expansive power in interpreting and enforcing the covenants, many conflicts may end up in the court system.
Scope of this pathfinder
Litigation has become so common in this area that there is now a specialty in legal practice called Community Association Law. This research pathfinder is designed to assist every participant which may be involved in a community association dispute: individual home or unit owners, association officers and board members, and lawyers. The focus is on Arizona law where applicable, but many of these principles would apply to researching the law of community associations for any state. Since areas of legal dispute can vary widely in Community Association Law, from fundamental Constitutional Rights to use of common recreational facilities, this pathfinder offers only general guidance in how to find the cases and other materials which will be helpful. However, there are some contemporary issues which are covered more specifically.
Before you begin your research... a note about search terms
The authors who have written materials on Community Association Law have used several different words for a community association, although this is the more common name. The trick to doing research in this area is to figure out which search terms work the best in each index or source. If you are not having luck finding materials indexed under community associations, here are some other search words, phrases, and acronyms to try.
*common interest developments (CIDs)
*covenants, conditions, restrictions (CC&Rs)
*planned unit developments (PUDs)
*condominiums
*master planned communities
*residential community association (RCA)
*common interest community
*servitudes
*planned communities
*homeowner's associations (HOAs)
Journal and Law Review Articles Summary of good journal articles
The best place to begin research for a community association issue is in the journal literature. The most recent and specific materials appear here, and if you are able to find an article addressing your issue, the author has probably done all of the research for you, and you can use the footnotes of the article to find the rest of your research. Below are some hints for finding relevant articles quickly, depending on which research tool you use.
1. LegalTrac
By doing a Subject search using the search terms planned communities, you will pull up lots of useful journal articles in various subsection areas. This is probably the most successful search to run in LegalTrac. The Keyword searches pull up fewer articles. A Keyword search for homeowner's associations pulls up mainly older sources. You can also try narrowing your search by including some search terms from a specific issue you may be researching.
2. Westlaw
A natural language search is probably all you need to find general articles. A natural language search using the terms community associations yielded many results. A natural language search of master planned communities is helpful if you are interested in more zoning-related issues involving city and county interaction with covenants. Surprisingly, a natural language search of common interest developments finds many articles which were did not come up under the community associations search. You would probably get the most comprehensive list of journal articles by running both the community associations search and the common-interest developments search. A terms and connectors search of "community associations" pulls up quite a few recent articles, even more recent as a whole than what the natural language searches find. Terms and connectors would be a good way to search if you have some other works you could add to your search if you have a specific fact pattern or circumstance you are researching.
3. Lexis
The best way to find relevant journal articles in Lexis is to use the database Law Reviews, Combined, and run a basic search in freestyle using the terms community associations or common interest developments. It may be helpful here to limit by date since many articles are returned. For most situations, you can get complete and current information if you limit your search to after 1992. Anything before this is likely no longer relevant, since Community Association Law has been changing in the past several years.
Here are some of the better articles which you may want to start with, along with a summary of what is included in each one.
1. "Home
Businesses, Llamas, and Aluminum Siding: Trends in Covenant Enforcement."
by Katherine N. Rosenberry. The John Marshall Law Review
vol. 31, no. 2 winter 1998 p. 443-487.
(31 J. Marshall L. Rev. 443)
This article addresses judge's willingness toward making covenants easier to enforce, with more discretion given to the association in recent years. Home-based businesses which were once completely prohibited are being allowed despite the covenants if they have little impact upon the character of the neighborhood. Increasingly broad discretion is being given to Architectural Committees in their decisions to approve or disapprove of improvements. Courts are more and more likely to enforce fines which a community association may impose for violation of the covenants as long as they are reasonable. If the procedures outlined by the association for enforcement are not followed, however, courts are unlikely to enforce covenants.
2. "Common
Interest Communities: Evolution and Re-invention." by Wayne
S. Hyatt John Marshall Law Review vol. 31 no. 2 winter 1998. p.
303-395.
(31 J. Marshall L. Rev. 303)
Contains a good explanation of contemporary issues facing community associations, including privatization, Constitutional rights, relations with local governments, and financing. This is a good article for a lawyer who want to become familiar with Community Association Law. This would also be a good source for managers or other personnel of community associations who want to understand the issues they will be facing in the future. The footnotes in this article are very complete with citations to current case law which has establish the points of law made. Also addressed is the trend toward privatization of provision of services formerly provided by city or county governments.
3. "Symposium: Common Interest Development Communities: Part I: A Comparison of California Common Interest Development Law and the Uniform Common Interest Ownership Act." by Katharine N. Rosenberg & Curtis G. Sproul. Santa Clara Law Review vol. 38 p. 1009. (38 Santa Clara L. Rev. 1009)
This article contains a good summary of the Uniform Common Interest Ownership Act (UCIOA). It explains the purposes of the act, as well as the intent of the authors.
When searching for Arizona materials on community associations, the search terms planned communities or condominiums will be the most successful, especially when you are searching for statutes or case law which applies or interprets the statutes.
33-1201-1270 is Arizona's codification of the Uniform Condominium Act, which applies to any community association which is created in a condominium subdivision. This is one area in which applicable law varies between condominium associations and homeowner's associations. The differences in the statute itself from those governing homeowner's associations are mainly due to the nature of a condominium building. Otherwise, the powers and scope of the board of directors and the members of the association are basically the same. If you are interested in finding the original text of the Uniform Condominium Act as originally written, consult the Uniform Act and Federal Law section of this pathfinder below.
33-1801-1807 is the section which applies to Planned Communities in general. These sections appear to be an attempt to place limits and obligations upon associations in how they conduct and manage their communities. 33-1803 addresses payment of dues and penalties, and sets a cap of 20% per year for the amount which annual assessments are allowed to be increased. 33-1804 directs all meetings of the board of directors of an association to be open to association members, with a few exceptions. 33-1805 directs that general association records, excluding privileged or private information, are to be made reasonably available for members to examine. 33-1806 puts burdens upon associations when a unit is sold within the association. After notice of a pending sale, the association must make certain disclosures to the prospective purchaser, and provide them with copies of governing documents such as the bylaws, rules and regulations, and the covenants, or declaration. 33-1807 governs the scope of liens which the association may place on units for violations or non-payment of annual assessments.
Both of these statutes are available online from the Arizona
State Legislature web page
Once you reach the site, click on statutes, then go to Title 33 (Property).
Researching Arizona case law using the Arizona Digests and Arizona Reports can be tedious, but the digests are actually a good source to direct you to other materials which may be helpful, such as sections of the American Law Reports or case law in other jurisdictions which may be persuasive. In the Descriptive Word Index, look up condominiums or covenants. Associations also directs you to a few relevant cases, but they are mixed in with other associations in general, and there is not a topic specific to community associations. You can also go directly to the topics Condominiums, Covenants, and Associations in the Digest. Covenants is a broad topic area, and they key numbers most applicable to covenants having to do with deed restrictions and community associations are 49-84 and 104-140. These are the only sections I found with general case law citations about community associations. Once again, if there are other possible keywords suggested by a specific fact pattern you are researching, try looking those words up in the Descriptive Word Index. Arizona case law is also reported in paper form the Pacific Reporter, and is indexed by the Pacific Digest.
By the far the quickest way to research Arizona case law if you have the sources available to you are the internet-based searching tools.
1. Lexis
The database to use
to search Arizona case law is AZ Cases, Agency Opinions, and Attorney
General Opinions. If you are looking for cases involving a specific
community association, the quickest way to find those cases is to do a
freestyle search with the name of the association in quotations as your
search term. If you want cases about a specific aspect of community
associations, you might want to try "community association, planned
community, or homeowner's association in conjunction with other
words relevant to your area of interest, such as assessment, lien,
board
meetings, easement, etc.
2. Westlaw
The database ID in
Westlaw for searching Arizona case law is AZ-CS. The natural
language searches in Westlaw return more cases on average than Lexis.
The same search terms used above for Lexis are also successful for Westlaw,
except that the search term planned community returned a lot of
cases, many of which were not related to community associations.
There are other web sites which index Arizona case law, but be careful to check their reliability and how often they are updated before you rely upon your search results. One source to try is FINDLAW. It is a free web site that indexes state and federal statutory and case law, and has other legal resources available as well.
Books can be very helpful in researching community association issues. Next to journal articles, it appears that the most current information written by experts in the field can be found in some books that have been written in the last few years. To find books and treatises, use either a library catalog indexing guide such as Sabio, or use any Books in Print index. To find publications by the American Bar Association, go to their web page. To find books in a library, the best way is to do some preliminary research to get some call numbers, and then go to those shelf locations and shelf-read to find books that may be helpful. Because books about community associations may be indexed in so many different ways, this is a good method to ensure you find out all you can since the books will generally be shelved together. Be wary of using books that are older than 1991 or so, as procedures or legislation may have changed the applicability of the information. Listed below are some good books to serve as a starting point for research, or for more in-depth information in some cases.
Best sources for overall information
1. Community Association Law: Cases and Materials on Common Interest Communities. by Wayne S. Hyatt and Susan F. French. 1998.
This book is written like a law school text book, but has very organized and valuable information of all legal aspects of community associations all in one place. This would be a good source for an attorney just starting out in Community Association Law. It contains all of the cases which have established the law as it is today. Although this book has a skimpy index, the summary of contents below is well organized and is followed by a more thorough table of contents.
Chapter 1: Introduction:
Common Interest Communities and Community Associations
1.01 Community Associations in
Common Interest Communities
1.02 Types of Common Interest
Communities
Chapter 2: Creating Common
Interest Communities
2.01 Rationale for Creating a
Common Interest Community
2.02 Express Formation
2.03 Implied Formation
Chapter 3: Association Functions
and Powers
3.01 Managing the Common Property
3.02 Acquiring Real Property
3.03 Regulating Use and Making
Rules
3.04 Allocating Interests in
Common Areas
3.05 Advocating for the Community
Chapter 4: Community Associations
as Mini-Governments: Public or Private?
4.01 Community Associations and
the Constitution
4.02 Constitutional Issues Where
Public/Private Distinction Might Matter
Chapter 5: Association Governance
5.01 Rights of Members
5.02 Board of Directors
5.03 Governance Structures for
Large Communities
Chapter 6: Financing the Community
6.01 The Power to Assess
6.02 Governing Documents Provide
Assessment Method
6.03 Assessing Unbuilt Units
6.04 Declarant Exemption from
Paying Assessments
6.05 Special Assessments
6.06 Collection of Assessments
6.07 Reserve Funds--When, Why,
and How
6.08 Association Taxation Issues
Chapter 7: Design Standards
and Control
7.01 Validity of Architectural
Standards
7.02 Scope of Architectural Committee's
Authority
7.03 Construing Document Terminology
7.04 Judicial Review of Architectural
Committee Actions
Chapter 8: Enforcement in
the Community
8.01 Enforcing the Community's
CCRs, Rules and Regulations
8.02 Duty to Enforce
8.03 Enforcement Method
8.04 Defenses to Enforcement
of CCRs, Rules and Regulations
8.05 Attorney's Fees
Chapter 9: Amending the Governing
Documents
9.01 Authority Granted in Governing
Documents
9.02 Uniform Application of Amendments
9.03 Amendments May Expand Scope
of the Servitude Regime
9.04 Amendments May not Deprive
Members of Certain Existing Rights
9.05 Prospective and Retroactive
Application of Amendments
9.06 Method of Amending Documents
9.07 Power to Extend and Renew
Servitude Regime
Chapter 10: Liability of Associations,
Boards, and Members
10.01 Association Liability
10.02 Board Member Liability and Indemnification
10.03 Members' Exposure to Liability
10.04 Representative Capacity of Association
Chapter 11: Declarant Control
of Association and Transition
11.01 Declarant Control of Board
11.02 Transition of Control
11.03 Liability Arising from Declarant
Control of the Community Association
2. Privatopia by Evan McKenzie. 1994
This book addresses the trend of community associations becoming more like governments in the provision of traditionally public services. This book is more theoretical than practical, but it offers a very good history of community associations, and is very well footnoted with full citations to references. It would be of interest to a member of a board or a general manager of a community association.
3. Planned Communities, Ownership Options, & Developmental Formats, by Alan J. Robin, et. al. (a publication by the American College of Real Estate Lawyers and the Real Property, Probate and Trust Law Section of the American Bar Association).
This book addresses some contemporary developments in community association management such as the emergence of Alternative Dispute Resolution covenants in many newer associations, and the new roles and functions of the association which manages a planned community. Also examines case law which has defined key points in Community Association Law. This book is more oriented to a legal practitioner rather than a homeowner or board member.
4. Condominium Law and Practice: Forms by Patrick J. Rohan and Melvin A. Reskin. Published by Matthew Bender.
This looseleaf-type resource is much more topic-specific toward condominium issues, and assumes a base legal knowledge of condominium association functions and operations. It contains illustrations and forms using examples from existing projects. This book has a good topical index, and contains lots of examples of condominium litigation documents. This would be a good source for a practitioner who is preparing a condominium case for litigation.
5. Restatement Third Servitudes (Tentative Draft No. 7). by the American Law Institute. April 15, 1998.
Chapter 6 of this draft deals exclusively with Common Interest Communities. It addresses in great detail the Uniform Common Interest Ownership Act (UCIOA), particularly the amendments in 1994. It interprets the UCIOA, and has notes citing related statutes in other states. Has illustrations and examples to demonstrate how the principles in the UCIOA are intended to be applied in practice. One very helpful thing which the authors have done is written the holding of each case cited in parenthesis, which is important for those readers who may not be as familiar with the fundamental case law in this field.
6. Condominium & Homeowners' Associations that Work on Paper and in Action by David B. Wolfe (published jointly by the Community Association Institute and the Urban Land Institute) 1978.
If you are dealing with a community association that was formed in the 70's or early 80's, this is a good source since it reflects the format and structure that associations took during that time period. It also may be helpful for someone who is tracking the history of community associations.
7. Looseleaf: The Law of Condominium Operations by Gary A. Poliakoff, J.D. 1988.
While the date on this source is also a little bit old, it might be helpful for someone who is once again interested in the history or is dealing with an older association. A lot of the statute cites probably haven't changed much, so it should still be a fairly useful tool.
8. Neighborhood Politics: Residential Community Associations in American Governance by Robert Jay Dilger. 1992.
This book takes a more academic, non-legal approach in examining relationships between various levels of government and community associations. Addresses the implications for the public-private distinction caused by the increasing privatization in the provision of traditional government services. This would be a good informational source for a government official or an individual who is contemplating whether or not to purchase property located within an association.
ARIZONA RESEARCH REFERENCE
Arizona Legal Research Guide by Kathy Shimpock-Vieweg and Marianne Sidorski Alcorn. 1992.
FEDERAL LEGISLATION AND UNIFORM ACTS
The Telecommunications Act of 1996 regulates what restrictions a community association may place upon the installation of an antenna or satellite dish device. This is currently a hot issue in Community Association Law, because the regulations which have been created to carry out this law essentially disallow community associations to interfere with a homeowner who wants to install a reception device. Even very benign rules such as requiring prior approval appear to violate the regulations. The citation for the section dealing with this interference is 47 USC 207. In the Code of Federal Regulations, 47 C.F.R. Section 1.4000 prohibits restrictions to antenna installation commonly imposed by community associations. The regulations have been modified several times as they are still in the revision phase. The most recent rule became effective January 22, 1999. It is a good idea to check for further updates to this regulation in the Code of Federal Regulations.
The Uniform Common Interest Ownership Act (UCIOA) is a creation of Uniform Laws Annotated (ULA), which is written by the National Conference of Commissioners on Uniform State Laws. It was written in the hopes that states will adopt all or parts of it into legislation, to streamline the treatment of community associations state to state. The UCIOA was originally written in 1992, and was revised in 1994. While only Connecticut adopted the 1982 version, it appears that states are adopting language similar to the 1994 version, and several states have adopted the Uniform Condominium Act, including Arizona. The Uniform Condominium Act was encompassed in the UCIOA. The UCIOA text can be found in the books written by ULA, of which there are several volumes. The UCIOA appears in volume number 7.
The legal encyclopedias are not all that helpful for researching community association issues. While they certainly provide general definitional information, there are plenty of journal and law review articles which can do the same thing with more specificity and currency. The encyclopedias are generally not specific enough to assist in researching an actual fact pattern.
1. Corpus Juris Secundum (CJS)
There is a topic heading for Covenants which talks about types of covenants, including restrictive covenants formed during creation of an association.
2. American Jurisprudence (AmJur)
Under the topic heading Condominiums, there is a comparison between condominiums and cooperative apartments. There is some information on taxation of condominiums, but not very much on the governance. It does have a clear and concise explanation of the UCIOA.
3. American Law Reports (ALR)
The most relevant information seems to be indexed under Condominiums.
The three sources mentioned above are all in book format, but are also available electronically. Lexis has ALR and AmJur, and Westlaw has all three.
If you are searching for information in a different state, pay attention to the annotations in journal and law review articles and other sources which cite other state materials. In the Arizona version of the Uniform Condominium Act, for example, there is listed the condo acts of several other states. It also might be a good idea to consult a research guide written specifically for your state. Below are some research guides for selected states.
1. California: California Legal
Research Handbook by Larry D. Dershem and Fred B. Rothman 1997.
2. Colorado: Colorado Legal
Resources: An Annotated Bibliography by Gary Alexander
1987.
3. New Mexico: Guide to New
Mexico State Publications by Patricia Wagner & Mary Woodward
1991.
4. Washington: Washington
Legal Researcher's Deskbook by Gallagher Law Library 1996.
COMMUNITY
ASSOCIATION INSTITUTE
This is a trade association of sorts for individuals involved in community
associations. Their web site contains a job bank, press releases
on current issues and trends in community association law, updates on governmental
rules and regulations, and lists of publications by the CAI which can be
ordered. They also offer information on their management classes
and certifications. The site offers even more information if you
are a member of their organization. There are state chapters of CAI
as well, and many of them also have web sites, including the Central
Arizona Chapter.
NATIONAL ASSOCIATION
OF RESIDENTIAL PROPERTY MANAGERS
This is a good source for property
management professionals, which usually manage the day to day operations
of community associations. It contains information on courses and
certifications offered by this organization.
ATHOMENET
This is a business that will
create and maintain a web site for your community association.
URBAN LAND INSTITUTE
The Urban Land Institute is
a good site for developers of communities which will be governed by an
association. It contains information on land use policies, conferences,
and publications available.
LEGAL INFORMATION
INSTITUTE
This site, maintained by the
Cornell Law School, is a great alternative to internet case and statute
researching if you don't have access to Lexis or Westlaw. It contains
lots of legal information both at the federal and state level.
OTHER INTERNET TIPS
There are many other resources available on the internet. Below are some guidelines for finding other sites, depending upon your area of interest.
Using the search term community associations gets a lot of hits. Add in other words as your situation permits to narrow the results down a little bit, because otherwise there is a lot to sift through.
USING NETSCAPE
Community associations gets a lot of hits here too. If you type in master planned communities, you will get information on specific community association web sites. If you have a specific association to research, adding its name as a search term will likely get you to their web site using Netscape. If you type in property management, you will get a listing of firms which specialize in property management, some of which do community association management. If you add a State to your search, it will narrow down to those firms practicing in that state.
If you type in community associations here, you get a lot more hits for pages of attorneys who practice community association law, as well as sites of property management firms who do community association management. It seems like no matter what search terms you use, Excite returns a lot of hits, which can be good if you are able to narrow your search enough, but may be overwhelming if you don't have any specific terms to add to your search.
1. Constitutional Rights:
The increasingly proactive role played by community associations in recent years has prompted concerns that their assertion of power may infringe upon the Constitutional rights of the members living in the community. Listed below are some of these specific concerns, along with citations to the cases which are key in establishing the law which will likely shape how these decisions will come out in the courtroom. If you are researching a Constitutional rights issue, these cases will be a good place to start in order to understand your issue.
*State Action: At what point does a private organization like a community association invoke state action? In recent years, with community associations assuming an increasing role in providing traditional governmental services ranging from garbage collection to security, this issue has become even more problematic. See Marsh v. Alabama 326 U.S. 501 (1945).
*First Amendment Freedom of Speech: These issues are implicated when associations put restrictions on activities such as placing signs on the property, handing out fliers, or hanging up flags. It is important for association managers to understand the Constitutional implications of prohibitions they may be placing on association members. See Gerber v. Longboat Harbour North Condo, Inc. 724 F. Supp. 884 (1989) Fla. The Guttenberg Taxpayers and Rentpayers Association v. Galaxy Tower Condo Assoc. 296 N.J. Super.101, 686 A. 2d 344 (1995) and 297 N.J. Super 404, 688 A. 2d 156 (1996).
*Substantive Due Process: These issues come up where associations may treat groups of people differently based on age, marital status or other basis. See Covered Bridge Condo Assoc, Inc. v. Chambliss 705 S.W. 2d 211 (Texas 1985).
*Procedural Due Process: This would be implicated when the process of enforcement of deed restrictions or rules is arguably arbitrary or the procedure set up by the association was not followed. See Majestic View Condo Assoc, Inc. v. Bolotin 429 So. 2d 438 (Fla. 1983)
2. Alternative Dispute Resolution
Many associations are turning toward ADR as an alternative way to resolve disputes between 2 members or between a member and the association itself. This issue is further discussed in Community Association Law: Cases and Materials on Common Interest Communities. by Wayne S. Hyatt and Susan F. French. 1998 at p. 521.
3. Telecommunications Act of 1996
The implications for associations under these new laws and statutes has become a hot topic as associations are attempting to figure out what they are still allowed to regulate with respect to antennas and satellite dishes.