Heritage Heights Home Owners Ass'n v. Esser
In Heritage Heights Home Owners Ass'n v. Esser, 115 Ariz. 330, 333, 565 P.2d 207, 210 (App. 1977), the association filed a complaint against a home owner to enforce a restriction in the subdivision deed. Id. at 332, 565 P.2d at 209.
The trial court denied the association's request for injunctive relief and its request for attorneys' fees. Id.
The association appealed from both of the trial court's rulings. Id.
The Court held that the trial court erred by not ordering the home owner to immediately comply with the deed restriction. Id. at 333, 565 P.2d at 210.
In addition, the Court held that the home owner was contractually bound by the provision in the parties' contract that the "owner . . . against whom the action is brought shall pay all attorneys' fees and costs thereby incurred by any such enforcing party prevailing in any such action." Id.
Accordingly, The Court stated: "Recovery of all costs and attorneys' fees, including those on appeal, must therefore be granted to the Association." Id. at 334, 565 P.2d at 211.
In Heritage Heights, the deed restriction contained the following provision:
In the event . . . the Association employs an attorney, or attorneys to . . . enforce compliance with or specific performance of the terms and conditions of this Declaration, the owner, owners and parties against whom the action is brought shall pay all attorneys' fees and costs thereby incurred by any such enforcing party prevailing in any such action. 115 Ariz. at 333, 565 P.2d at 210.