Multari v. Gress – 4/24/2007
Arizona Court of Appeals Division One Holds That A Developer May Not Use Private Deed Restrictions to Circumvent Applicable Uniform Covenants and Restrictions.
When the Gresses tried to build a “small accessory building” on their property in Ocotillo Hills, their neighbors, the Multaris, objected, citing a private deed restriction recorded in 1976 that prohibited any structure smaller than 1400 square feet or taller than 13 feet. When the Gresses persisted in constructing the building, citing their right, under the 1973 Uniform Covenants to build, without restriction, “residences and accessory buildings” on their property, the Multaris sued. They sought a declaration that the 1976 Deed Restriction is valid and enforceable. The trial court granted the Multaris cross-motion for summary judgment.
On appeal, the Gresses argued that the 1973 Covenants permitted their construction because the 1973 Covenants could not be modified without an agreement by 2/3 of the owners of the lots. Because the 1976 Deed Restrictions altered the 1973 Covenants by taking away the unfettered right to construction of accessory buildings but were adopted without the agreement of 2/3 of the owners, the 1973 Covenants trumped the later deed restrictions. The appellate court agreed, holding that to permit developers to circumvent original covenants and restrictions through adoption of private deed restrictions “would destroy the right to rely on restrictive covenants and completely upset the orderly plan of the subdivision.” The court noted, however, that its decision does not address the scenario in which a private property owner, instead of a developer acting on multiple lots, conveys property subject to certain private deed restrictions.
Opinion by Judge Barker, in which Presiding Judge Norris and Judge Thompson concurred.