CC&R Amendments: What Rights Do Homeowners Have?

By Anjali Patel, HOA Attorney at Tyler Allen Law Firm in Phoenix, Arizona

A CC&R amendment can change the rules attached to an Arizona home, but an association cannot simply add any restriction it wants. The amendment must follow the declaration and the Arizona statute that applies to that community. It also has to fit within the limits the Arizona Supreme Court described in Kalway.

That last limit is the one homeowners rarely know about, and it is often the strongest ground for pushing back.

Can an HOA change the CC&Rs without homeowner approval?

Usually, owner approval is required. A planned community's declaration generally requires the vote or written consent specified in the declaration, plus any other approvals the declaration requires. Arizona law does contain narrow exceptions. For example, A.R.S. § 33-534 allows a board to amend a governing instrument without a membership vote to remove an unlawful restriction.

The declaration usually sets the threshold, not the board

For a planned community, A.R.S. § 33-1817 does not impose one statewide percentage. Instead, it generally defers to the declaration and requires the vote or written consent of the number of owners or eligible voters that document specifies, along with approval from any person or entity the declaration names. The narrow statutory exceptions, including removal of an unlawful restriction under A.R.S. § 33-534, should not be mistaken for a general power to rewrite the CC&Rs.

So the first question in any amendment dispute is a document question. Pull the recorded declaration and read the amendment article. Communities commonly require two-thirds or seventy-five percent of all owners, not merely of those voting, and that distinction decides outcomes. An association that counts a supermajority of a sparse turnout when the declaration requires a supermajority of all owners has not validly amended anything.

Once adopted, the association must prepare, sign, and record a written instrument setting out the amendment within thirty days, and the amendment takes effect when it is recorded in the county where the property sits. An amendment that was announced in a newsletter but never recorded is not yet operative.

The Kalway limit on new restrictions

In 2022 the Arizona Supreme Court decided Kalway v. Calabria Ranch HOA, which remains the most important Arizona authority for homeowners facing an unwelcome amendment. The court held that a general amendment power in a declaration does not let a majority impose new and unforeseeable restrictions on individual owners. Amendments have to be reasonable and foreseeable from the original declaration, because buyers consent to the scheme that was recorded when they purchased, including amendments of the kind that scheme put them on notice about.

The practical effect is significant. An association can usually refine, clarify, or adjust restrictions that the original CC&Rs already addressed. It has a much harder time creating a category of regulation the declaration never contemplated. An amendment that suddenly caps the number of animals on a rural parcel, or imposes a building size limit where none existed, invites exactly the challenge Kalway describes.

The firm covered the decision when it came down, and the analysis of how the Arizona Supreme Court gave homeowners a tool against majority-passed amendments is worth reading alongside your own declaration.

Kalway is not a veto over all change. It is a notice principle. The question a court asks is whether the original declaration gave owners fair warning that this general subject could be regulated, not whether the owners like the result.

How many homeowners does it take to amend CC&Rs in Arizona?

For a planned community, the answer is generally whatever number the declaration requires. That is commonly a supermajority of all owners rather than a majority of those who happen to vote. Condominiums use a different statute, discussed below, so do not assume the same percentage or citation applies.

Your rights during the amendment vote

Arizona gives homeowners procedural rights that matter as much as the substantive limits.

If the amendment is being decided at a member meeting, notice comes first. Under A.R.S. § 33-1804, notice generally must be delivered between ten and fifty days before the meeting and must state the date, time, place, and purpose, including the general nature of any proposed declaration amendment. An association cannot bury a declaration amendment in general business and vote on it the same night. The statute also requires an agenda, and it directs that its provisions be interpreted in favor of openness.

The same statute protects your voice at the meeting. Members are entitled to speak at appropriate points, and the board must give members an opportunity to speak after an agenda item has been discussed and before the vote on it. Reasonable time limits are allowed. Silencing owners until after the vote is not. Members may also record the open portions of meetings, and if the board records an open meeting it must keep that recording for at least six months and provide unedited copies to members who ask.

How votes are cast is governed by A.R.S. § 33-1812. After the period of declarant control ends, votes cannot be cast by proxy regardless of what the community documents say. The association must allow in-person voting and absentee ballots, and may permit other delivery methods such as email or fax. An absentee ballot has to set out each proposed action with a choice for or against, be valid for only that one meeting, give a return deadline at least seven days out, and carry the voter's name, address, and signature. Ballots and related materials must be retained and open to member inspection for at least a year. That retention requirement is how a contested amendment gets audited after the fact.

If you live in a condominium

Condominiums use a different statute. Under A.R.S. § 33-1227, a condominium declaration generally requires at least sixty-seven percent of the association's votes, or a larger percentage stated in the declaration, subject to statutory exceptions and situations requiring unanimous consent. Voting mechanics are governed by A.R.S. § 33-1250. Owners should confirm which act applies before relying on a percentage or statutory section because the planned-community rules do not automatically carry over to a condominium.

Amendments that single out particular lots

A.R.S. § 33-1817 addresses a scenario that produces real unfairness. An amendment may apply to fewer than all of the lots in a community. When it does, it is treated as conforming to the general design and plan of the community only if it meets the declaration's ordinary vote and approval requirements and is also approved by all of the owners of the lots or property it affects.

In other words, a community majority generally cannot target a handful of parcels with a restriction the rest of the community will never feel without the approval A.R.S. § 33-1817 requires from the affected owners.

If you think an amendment is invalid

Start with documents rather than argument. Obtain the recorded declaration, every prior recorded amendment, the meeting notice and agenda, the ballots, and the tally. Associations are required to keep election materials for at least a year, and a records request is the ordinary way to get them. Then compare the vote actually achieved against the threshold the declaration requires, confirm the notice stated the proposed amendment, and ask whether the new restriction was foreseeable from the original scheme.

Timing matters, because associations enforce amendments through the same machinery they use for everything else. An invalid amendment can still generate a violation notice, and from there fines that may or may not be lawful and eventually a lien against the home. Raising the validity question early is considerably cheaper than raising it after assessments have accrued.

If an amendment is on the agenda in your community, the groundwork for participating effectively in an association vote applies here with more force than usual, because a declaration amendment binds future owners too.

If you need help with your situation in Arizona, you can book a consultation directly here.