Developers of condominium communities and HOAs often reserve access easement rights within the Declaration/Deed Restrictions for the subdivision, especially when the Developer owns yet-undeveloped neighboring property. But what happens if the Developer forgets to reserve such easement rights specifically within the Declaration or Deed Restrictions? A recent case explores this dilemma, and at least in this case, the HOA owners come out on top.

Facts

In a 2019 case, some lot owners within a subdivision, which had been advertised as a private, gated community, sued the Developer for trying to enforce an access easement he had for the main road within their subdivision. The Developer claimed he needed access to that main road in order to develop the neighboring lots behind the gated community.  The Developer also believed he could grant access to the owners of the neighboring lots through the gated community. 
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Becker Boards Summit, LLC v. Summit at Copper Square Condominium Association – 2018 WL 6695279 ( 2018 Ariz.)

Issues:  The court in this case addressed two important issues:

  1. Can a Developer, before turnover, amend a Declaration to convert Common Element to Limited Common Element for the benefit of a Developer Unit?
  2. Can Developer contracts entered into before turnover be voided after turnover?


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