UCC AND CONTRACT LAW
NEW CC&R’s and YOUR HOA
Posted on May 25, 2022 in UCC AND CONTRACT LAWIt has been said that Arizona has more HOA’s per capita, than any other State. Always be very careful when suing your HOA. It is not uncommon for our Judges to uphold virtually any HOA act and then you are stuck with an HOA bill and possible lien on your home. In a 2022 appeal in Kalway v. Calabria HOA, all lots in a residential subdivision were under 2015 recorded covenants, conditions, and restrictions “CC&Rs”. The CC&Rs allowed for amendment “at any time by an instrument executed and acknowledged by the majority vote of the owners”.
In 2018, a proposed HOA amendment imposed new restrictions on how the lots could be used, the number and types of structures that could be built, and new enforcement codes
Later, one dissident owner sued the HOA. The non-consenting owner sought to invalidate the amendments. The trial court struck down two of the new restrictions in their entirety and partially invalidated two others.
The dissident appealed. His lawyer argued that all the amendments were invalid because they were not passed with unanimous consent. The court of appeals rejected this argument. In doing so, the court of appeals relied on an earlier court of appeals case, Dreamland Villa Community Club, Inc. v. Raimey, 224 Ariz. 42 (App. 2010), which required that the original CC&R declaration include notice that amendments on certain issues could be passed over the objections of a minority of property owners. Applying that rule, the court of appeals concluded that the general-purpose statement of the original declaration was sufficient to provide notice.
After a writ was granted, our Arizona Supreme Court adopted Dreamland as the controlling standard but disagreed with the court of appeals’ conclusion. The Court began by noting that, although CC&Rs are generally enforced as written, they are a special type of contract where unknown terms beyond the range of reasonable expectation are not enforced.
So, the CC&Rs do not have to give notice of the details of a future amendment they do have to give notice that a restrictive or affirmative covenant exists and that that covenant may be amended to change it in some way. In short, everyone lost, and one must always be careful and thoughtful when litigating with an HOA.
Feel free to call Bill Miller from Scottsdale, Arizona at 602-319-6899 if you need help in an Arizona Court proceeding for or against an HOA.
We also handle, Breach of contract, Non-compete agreements, Non-disclosure agreements, Employee theft and embezzlement, Insurance purchases and enforcement of policy coverage, Negotiation and/or enforcement of commercial leases, Negligence and gross negligence resulting in losses, Intentional acts causing a company to suffer damages, Tortious interference with contractual relationships, Unjust enrichment, Real Estate fraud, Consumer fraud, Conversion/Theft, Intentional and/or negligent misrepresentation, Business torts and Real estate title & escrow.
Freedom
Posted on May 18, 2022 in UCC AND CONTRACT LAWAlliance Defending Freedom attorneys representing three Christian law students filed suit Monday against University of Idaho officials for violating the students’ First Amendment rights by punishing them because of the religious content and viewpoint of their speech.
“Students of all religious and ideological stripes must be free to discuss and debate the important issues of our day, especially law students who are preparing for a career that requires civil dialogue among differing viewpoints,” said ADF Legal Counsel Michael Ross. “Yet the University of Idaho is shutting down Peter, Mark, and Ryan because of their religious beliefs. This is illegal behavior from any government official, and we urge the university officials to right their discriminatory actions immediately.”
Peter Perlot, Mark Miller, and Ryan Alexander are members of the Christian Legal Society chapter at the University of Idaho. When Perlot and Miller joined most of the other members of CLS at a “moment of community” gathering to condemn a discriminatory slur written at another campus, a law student approached them to ask why CLS requires its officers to affirm the belief that marriage is between a man and a woman. Miller respectfully explained that the chapter requires this because it is the only view of marriage and sexuality affirmed in the Bible.
Doing the right thing will always lead to blessings. I Corinthians 6:19.
https://www.washingtontimes.com/news/2022/apr/27/law-students-sue-u-idaho-alleging-religious-discri/
Fraud and Arbitration in Arizona
Posted on in UCC AND CONTRACT LAWMost large companies are slipping arbitration provisions in their contracts. They do not want the consumer in front of a Jury. Sometimes in Arizona, if there was a fraud in the entering of a contract, the arbitration proviso is invalid. In March, the Arizona Court of Appeals ruled that the separability doctrine requires the lower court to ask if fraud invalidates arbitration provisions, separate from the contract as a whole. Duncan contracted with a storage company. The contract contained an arbitration clause that stated the parties agreed to arbitrate any and all disputes or claims relating to the relationship between the renter and the storage company. Duncan claimed that the storage company advertised that no other person would have a key to their storage unit. A thief ended up stealing Duncan’s property. Duncan & two other renters filed lawsuits against the storage company for consumer fraud and negligence. The storage company filed a motion to compel arbitration, and the superior court denied that motion. The superior court held that the storage company fraudulently induced the individuals to agree to the rental contracts by representing there was only a single key, and so the arbitration agreement was invalid. On appeal, the storage company argued that the superior court erred because it misconstrued the separability doctrine, and erred when it found the arbitration clause was fraudulently induced or unconscionable. The Court of Appeals agreed with the storage company. The question at issue on remand, then, is whether the storage company’s misrepresentations as to the existence of other keys fraudulently induced the individuals to agree to arbitrate their claims. These matters are complex and getting out of arbitration is not always the best route. At the law firm of William A. Miller in Scottsdale, we currently have 2 active arbitrations (Jams and AAA) and 10 suits in the Maricopa County Superior Court system. Give us a call at 602.319.6899 to discuss your case. Duncan v. Pub. Storage, Inc.
Elder Law and Lost Investment
Posted on January 28, 2022 in UCC AND CONTRACT LAWFor over 34 years we have worked with stock investors’ whose portfolios have been mismanaged or pilfered. We have helped numerous families from across the State of Arizona recover loss. In about half the cases, we settle quick. In the other half, we go to Court or FINRA. We have also helped a handful of…
Read MoreMore Clarity on Banking Law
Posted on January 26, 2022 in UCC AND CONTRACT LAWOnce again, our Courts have ruled in favor of a bank. In 2005, Mr. and Mrs. Diaz (Diaz) executed a note for a home equity line of credit secured by a deed of trust on their home. The deed of trust was for the benefit BBVA bank. In 2012 Diaz stopped payments. At the same…
Read MoreHow Much is my Company Worth? Fraud?
Posted on July 12, 2021 in Arizona Law Regarding Business DisputesWorld Egg Bank, Inc. v. Nesco Inv., LLC Our Appeals Court rules that where a minority shareholder dissents from the sale of a corporation, the fair value of those shares is determined at the date of the sale. A 50% plus owner in a corporation wanted to sell his stock and dissolve a corporation objection…
Read MoreArizona Fraud
Posted on July 16, 2020 in Arizona Law Regarding Business and Real EstateOver the last 32 years, we have filed scores of claims for common law fraud, RICO, AZRAC, and fraudulent schemes. Common law fraud involves a dispute between two people or business entities. It almost always comes from a contractual relationship that went bad or an investment scheme. Unlike criminal fraud cases in which the defendant…
Read MoreLitigation in Arizona is About to Explode
Posted on March 23, 2020 in Arizona Law Regarding Business and Real EstateOn this website, a few years ago, we wrote… for over 33 years the Law Firm of William A. Miller has ‘seen it all’. Well, that was until last week. Litigation in Arizona for Fraud, Contract Breach and various business torts will explode, not unlike the days of the RTC. As most of you know,…
Read MoreThe Shoemaker Goes with Holes in his Sole…
Posted on December 31, 2018 in UCC AND CONTRACT LAWMy dad & mom taught me so many things. My dad would sometimes say, the “shoe-maker-goes-with-holes-in-his-sole”. Here is a blog about the “hole in my sole”. I am married to a prolific & wonderful person. She is devote Christian. She is as beautiful as a model, as smart as any “New York Times” feminist and…
Read MoreWhite Collar Crime on the Rise in Arizona
Posted on November 8, 2018 in UCC AND CONTRACT LAWA white collar crime is a financial crime. Many different types of white collar crimes occur in Arizona. Some of us remember the Ned Warren days, where Ned would sell ‘grand canyon’ land parcels to east coast families, often the same parcel scores of times. The families would drive to Arizona to see their parcel…
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