When a Private Covenant Is Enforceable
A private covenant is an agreement tied to real property. It places restrictions or duties on the owner. Arizona treats these agreements as valid, but only when three conditions are met.
First, the covenant must not violate existing restrictions or pre-2008 statutes. Second, all affected parties must consent. Third, any consent rules in the existing declaration must be met.
An owner of real property may enter into a private covenant regarding that real property and the private covenant is valid and enforceable according to its terms if all of the following apply: 1. The private covenant is not prohibited by any other existing private covenant or declaration affecting the real property and does not violate any statute governing the subject matter of the private covenant that is in effect before September 26, 2008.
A.R.S. § 33-440(A)(1)A private covenant does not automatically amend an existing declaration. The exception is when it directly contradicts one. This means HOA homeowners can enter into separate agreements without changing the master declaration.
Amending HOA Declarations
Outside the period of developer control, the HOA can amend its declaration. It needs the affirmative vote or written consent of the number of owners the documents require.
Amendments can apply to fewer than all lots. To do so, they need both the required community-wide vote and the unanimous consent of the lot owners directly affected.
Once adopted, the HOA must prepare, execute, and record the amendment within thirty days. The amendment takes effect right away upon recording with the county.
Impact on Estate Planning
When you transfer a home into a trust or pass property through an estate, existing CC&Rs follow the property. Knowing what restrictions are in place helps families plan ahead.
A review of the governing documents before any transfer is a smart step. State laws control how these covenants are enforced.