4.2 Enforcement of Restrictive Covenants [307]

• Jurisdiction: Arizona

§ 4.2 Enforcement of Restrictive Covenants ³⁰⁷

Since the Continental Oil case in 1931, Arizona courts have enforced restrictive covenants through equity. In Heritage Heights, ³⁰⁸ the court stated that the enforcement of such restrictions is by means of an injunction, ³⁰⁹ in which the trial court has the power to structure the remedy so as to do equity between the parties. The court in Ahwatukee CustomEstates Management Ass’n v. Turner, ³¹⁰ affirmed again that an injunction is an equitable remedy that allows the court to structure the remedy “so as to promote equity between the parties,” and that the enforcement of restrictive covenants is not a matter of right, but is governed by “equitable principles.” ³¹¹ The Turner court specifically stated that (1) relative hardships and injustice, (2) the public interest, (3) misconduct of the parties, if any, (4) delay on the part of the plaintiff (usually the association), and (5) the adequacy of other remedies are factors a court weighs in determining whether to issue an injunction. ³¹² In Flying Diamond Airpark, LLC v. Meienberg, ³¹³ the court of appeals held that the intentional conduct of the owner in violation negated the owner’s opportunity to argue relative hardships and injustice, the public interest, misconduct of the parties, delay on the part of the plaintiff and the adequacy of other remedies. Although “hardship” is a factor in restrictive covenant enforcement ³¹⁴, the law is clear that a party who is fully cognizant of restrictive covenants cannot spend large sums of money in order to claim a hardship. ³¹⁵

Section 6.8 of the Restatement provides for a range of enforcement options. It states:

Except to the extent limited by statute ³¹⁶ or the governing documents, a common-interest community has the power to enforce the governing documents, the rules and regulations adopted pursuant to § 6.7 [of the Restatement], and the obligation to pay assessments and other charges imposed pursuant to § 6.5 [of the Restatement]. ³¹⁷ In addition to seeking court enforcement, the association may adopt reasonable rules and procedures to encourage compliance and deter violations, including the imposition of fines, penalties, late fees, and the withdrawal of privileges to use common recreational and social facilities.

There are situations when there is a mandatory duty to enforce restrictive covenants. In Gfeller v. Scottsdale Vista North Townhomes Ass’n, ³¹⁸ the court of appeals held that the townhome association had the duty, not merely the right, to enforce a restriction requiring owners to do nothing that would interfere with the drainage of water. In finding a mandatory duty to enforce the restrictive covenants, the court’s opinion focuses exclusively on the language of the Scottsdale Vista North restrictive covenants. The restrictive covenants stated in part as follows:

After the date on which this instrument has been recorded, these covenants, restrictions, reservations and conditions may be enforced by the Association or its Board of Directors, which shall have the right and duty to enforce the same. . . .(Emphasis added.)

Gfeller did not create a new common law obligation...