4.8 Amendments to the Restrictive Covenants

• Jurisdiction: Arizona

§ 4.8 Amendments to the Restrictive Covenants

Amendments to condominium restrictive covenants can be accomplished in reliance on A.R.S. § 33-1227 , a provision of the Arizona Condominium Act, if the real estate development is a “condominium,” read in conjunction with the amendment provision of the restrictive covenants. There is no statute governing amendment of “planned community” declarations or similar deed restrictions. If an amendment to restrictive covenants is attempted but is not executed properly either pursuant to A.R.S. § 33-1227 or the language of the amendment provision in the restrictive covenants, the attempted amendment is void. ³⁶⁰ Care must also be given to whether or not the restrictive covenant can be amended at all.

In Scholten v. Blackhawk Partners , ³⁶¹ the court of appeals addressed a case of first impression in Arizona dealing with whether an amendment made during a “renewal term” becomes effective when properly adopted or upon the beginning of the next renewal term. The declaration of restrictions at issue in the Scholten case had the following “duration” clause:

The foregoing restrictions and covenants shall run with the land and shall be binding on all persons owning any of said lots in WILLOW CREEK HEIGHTS until February 3, 1970, at which time said covenants shall be automatically extended for successive periods of ten years each, unless by vote of a majority of the then owners of said lots in said WILLOW CREEK HEIGHTS, it is agreed to

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