Scholten v. Blackhawk Partners
In Scholten v. Blackhawk Partners, 184 Ariz. 326, 909 P.2d 393 (App. 1995), certain restrictive covenants included a duration clause, which stated that the covenants were to be extended for successive periods of ten years after February 1970, unless the residents agreed by majority vote to amend the covenants. Id. at 327, 909 P.2d at 394.
In 1992, the defendant lot owners attempted to amend the covenants, proposing a reduction of the minimum lot size from one acre to 18,000 square feet. Id.
The plaintiffs, a married couple, filed suit to obtain a declaration that the amendment was not yet in force because the defendants did not amend the covenants prior to the start of the new ten-year extension period beginning in 1990. Id. at 328, 909 P.2d at 395.
In ruling on cross-motions for summary judgment, the trial court dismissed the plaintiffs' suit, finding that the amendment was effective when filed. Id.
On appeal, we determined that an amendment approved "during the running of an extension period was effective only at the start of the next successive period." Id. at 329, 909 P.2d at 396.
The Court therefore concluded that the trial court erred by granting summary judgment in favor of the defendants. Id. at 330, 909 P.2d at 397.
Accordingly, the Court "remanded to the trial court with directions to grant plaintiffs' cross-motion for summary judgment and enter a judgment declaring that the subject amendment of the restrictive covenants cannot become effective until the end of the current extension period." Id. at 331, 909 P.2d at 398.