Homeowners Association boards frequently approach our office feeling stuck — having issued multiple notices and having levied monetary penalties with little or no impact. When violations persist and communication fails, many boards are uncertain about the next step, especially when that step might involve litigation. While most board members understand the legal process involved in recovering unpaid assessments, there's often more hesitation when it comes to enforcing compliance with the CC&Rs through the courts.
Injunctive Relief: A Legal Path to Compliance
In many cases, the governing documents give the Association the right to seek a court order — known as an injunction — to compel an owner to fix a violation. Unlike typical lawsuits where the goal is to collect money, an injunction is a request for the court to require specific action: correcting the issue and following the rules.
These types of lawsuits tend to proceed faster than standard litigation. Associations can often secure a court hearing within a few weeks of filing, giving the process a relatively quick timeline and, potentially, a quicker resolution.
The Cost Consideration
The major drawback of this enforcement option is the cost. Injunctions must be filed in Superior Court, which involves higher filing fees and more complex documentation. This can increase legal fees compared to routine collection actions. However, because of the quicker process and the strong likelihood of a favorable outcome, many Associations find the cost worthwhile — especially when trying to resolve ongoing or egregious violations.
The Importance of Knowing Your CC&Rs
The ability to pursue enforcement action — and to recover legal fees — depends heavily on what the community's governing documents actually say. Some CC&Rs clearly outline enforcement rights, including the ability to file lawsuits and recover associated legal expenses. Others are vague or require additional steps, such as special notice requirements, mediation, or even neighbor participation before legal action can be taken.
In a few cases, documents may lack enforcement provisions altogether. Fortunately, Arizona law and court rules can sometimes provide a legal basis for enforcement when the CC&Rs are silent or unclear. But this makes it all the more important to have experienced legal counsel evaluate the documents before proceeding.
When Legal Action Becomes Necessary
For homeowners who refuse to comply — even after multiple notices and fines — filing a lawsuit for enforcement may be the only remaining option. Arizona law recognizes a duty on the part of Associations to enforce their restrictions,1 and Arizona courts generally support the enforcement of valid CC&R provisions and will issue orders to ensure compliance when the circumstances warrant it.
That said, this step should be approached carefully. Before filing anything in court, the Board should have a clear understanding of the Association's legal authority and any procedural steps required under the governing documents.
Litigation should generally not be the first option, but for Associations dealing with chronic or serious violations, it can be an effective and necessary tool. Understanding what your documents permit, what the process involves, and how the court is likely to respond can help Boards make informed, confident decisions when enforcement is on the line.
Footnotes
1. See Gfeller v Scottsdale Vista North Townhomes Ass'n, 193 Ariz. 52, 969 P.2d 658 (Ct App 1998)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
