Private Covenants & HOA Declarations

33-440. Enforceability of private covenants; amendment of declaration; definitions A. 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. 2. The owner of the real property affected by the private covenant and any person on whom the private covenant imposes any liability or obligation have consented to the private covenant. 3. Any consent requirements contained in the express provisions of any existing private covenant or declaration affecting the real property have been met. B. A private covenant is deemed not to constitute an amendment to any existing private covenant or declaration unless the private covenant expressly violates an express provision of the existing private covenant or declaration. C. Except during the period of declarant control, or if during the period of declarant control with the written consent of the declarant in each instance, the following apply to an amendment to a declaration: 1. The declaration may be amended by the association, if any, or, if there is no association or board, the owners of the property that is subject to the declaration, by an affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration. 2. An amendment to a declaration may apply to fewer than all of the lots or less than all of the property that is bound by the declaration and an amendment is deemed to conform to the general design and plan of the community, if both of the following apply: (a) The amendment receives the affirmative vote or written consent required to amend the declaration. (b) The amendment receives the unanimous vote or written consent of the owners of the lots to which the amendment applies. 3. An amendment shall be prepared, executed and recorded within thirty days after the adoption of the amendment. The amendment is effective upon recording. 4. Regardless of what a declaration provides with respect to renewal and based on the original recording date or the most recently recorded amendment that modifies the expiration date of the declaration, the declaration may be amended to modify the term of the declaration.