Berk & Moskowitz, P.C.

Despite a broad arbitration provision in the Declaration of Covenants, Conditions and Restrictions (CC&R’s), a homeowners association’s claim for an injunction was not subject to arbitration and the association was entitled to file a lawsuit in Superior Court to obtain an injunction.

In the case of Saguaro Highlands Community Association v. Jack C. Biltis and Leigh Biltis, a dispute arose as to whether the home owner’s swing set violated the CC&R’s.  The association filed a lawsuit to obtain an injunction to have the owners remove the swing set.  The owners sought to dismiss the action and force the association to arbitrate the dispute.  The Superior Court disagreed and the Court of Appeals affirmed.  Both held that the association retained the right to pursue an injunction in Court based on the wording of the CC&R’s for that community, although the Courts noted the strong public policy favoring arbitration and based on which arbitration clauses are broadly construed.

In this case, Berk & Moskowitz, P.C. represented a group of owners of residential units in Northern Arizona.  They regularly rented their units to short-term vacationers.  Another owner later claimed that short-term vacation rentals violated the Covenants, Conditions and Restrictions for the development.  The Navajo County Superior Court disagreed and found in favor of the firm’s clients. The other owners then appealed.  The Court of Appeals affirmed that part of the trial court’s decision in favor of the firm’s clients.

Read the Court of Appeals decision.