How to Enforce Real Estate Covenants

One of the major factors that can substantially affect the use and value of real estate is the existence of covenants. Remarkably, there are many homeowners that either failed to read covenants at the time the real estate was purchased, or read them and have since forgotten about the content. There are many reasons why this commonly occurs but first, it is important to understand what exactly a covenant is.

A property covenant is when a real estate purchaser agrees to either do something (affirmative covenants) or the buyer agrees not to do something (restrictive covenant). In almost all cases, the agreement is binding to anyone the original buyer grants, leases, bequests, etc. the property to. For instance, the property may have a restrictive covenant that binds the owner, and all of the subsequent owners, from operating a business on the property. The property may also have an affirmative covenant on it, requiring the owner, and all subsequent owners, to pay association fees that go to the maintenance of common areas, even if the owner of the land does use that area. Regardless of whether the covenant is affirmative or restrictive, disputes regarding the enforcement of such covenants have been a hot-button issue for more than half a century and is often litigated through the court systems.

How the covenant is enforced depends on the type of community the property is located in. If the property is located in a condominium complex or planned community (i.e. sub-division) it is likely that a homeowner’s association exists. In that case, the homeowner’s association is vested with the authority to enforce covenants, and in extreme cases, bring a lawsuit against a homeowner on the behalf of the other homeowners. If there is not a homeowner’s association, and a homeowner wishes to prevent his neighbor from breaching a covenant, he must enforce it himself or better yet, come together with fellow neighbors who also wish to enforce the covenant.

One defense the homeowner looking to enforce a covenant needs to take into account is laches. Laches is an equitable defense that prospective/current property owners can raise that may prevent the disgruntled homeowners from enforcing the covenant. Laches applies when the party asserting the defense demonstrates that, because of delay or lapse of time, they are injured or have changed position in reliance on the other party’s inaction(s). Jerger v. Rubin, 106 Ariz. 114, 117, 471 P.2d 726, 729 (1970). It is extremely important that the ones wanting to enforce a covenant not wait around and continuously allow the homeowner to be in breach of the covenant without trying to enforce it. There a number of factors to take into account but Arizona courts tend to be less sympathetic to homeowners who are trying to enforce a covenant, and have sat on their rights for years.

If you have an issue regarding CC&R’s and want advice from an attorney experienced in real estate law, do not hesitate to contact me at my office.

Defending against an ADA lawsuit

In recent years, there has been a flood of federal lawsuits filed against companies for violating the Americans with Disability act and the Arizonans with Disabilities Act. The overwhelming majority of these ADA lawsuits in Arizona are brought by three individuals; Theresa Brooke, Santiago Abreu, and Dameion Mosley. In the Complaint, the Plaintiff will refer to themselves as a “tester”. Abreu and Dameion are represented by Chastain & Afshari. Brooke is the plaintiff in over 100 Federal ADA lawsuits. Since October 28, 2015, and up to May 15, 2016, Abreu alone has filed 33 lawsuits.

The Plaintiffs usually bring claims against business owners for failing to provide handicap individuals accommodations that are required under the ADA. Between the three of them, they have brought claims for inadequate restrooms, inadequate access ways, and unsuitable counter heights. The ADA is very specific as to what is required but many business owners are not familiar with the lengthy ADA statute. For instance, the ADA requires that the water closet, paper towel dispenser, and mirror be a certain height from the ground.

Regardless of whether you are a large commercial retailer, hotel chain, or simply own a small restaurant or bar, the lawsuit must be taken seriously. The Plaintiffs do not discriminate against whom they bring an action. Abreu’s defendants range from large corporations like the Sugar Bowl Corporation to small local restaurants like Casey Moore’s. Despite how “unfair” it may seem that you did not receive proper notice of the alleged ADA violations, the Federal District Court of Arizona has held that notice from the Plaintiff is not required before the plaintiff files the lawsuit. The Court has reasoned that the business was put on notice with the enactment of ADA in 1990 and the facilities should be in compliance.

Defending against ADA violations should not be taken lightly. If you fail to successfully defend the lawsuit against the ADA claims, it can be very costly. The courts have made it clear that they prefer all places of public accommodations, like restaurants and hotels, to accommodate the handicapped population. Whether making the accommodations is feasible or whether making the accommodations would cause an undue hardship to the business, is judged on a case-by-case basis.

If you receive a complaint against your business that alleges ADA violations and is brought Abreu, Mosley, or Brooke, do not delay. After you are served with the complaint, you only have 21 days to file the answer with the Court. If you want an attorney with experience defending these ADA lawsuits in your corner, do not hesitate to contact me at my office.

How Landlords Can Secure a Debt Before Judgment

Arizona Courts have recently ruled in favor of residential and commercial landlords and their ability to enforce secured judgments, even before a judgment is rendered in their favor. A.R.S. §§ 12-1521 and 12-2402(a) (1) allows a creditor to attach the property of the defendant as security for satisfaction of any judgment which may be recovered in the future. The statutes allows this security in this situation but what many creditors and debtors do not know is that the creditor can secure the property before a judgment is rendered when an action is pending for damages and the defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending. This is referred to as a provisional remedy.

Provisional remedies provide creditors (now landlords) an option to secure their debt without having a judgement. A creditor can secure a debt on the debtor’s real property, boat, car, bank account, stock, bonds, jewelry, etc. The creditor can essentially garnish and seize any of the above listed property before the court’s judgment is rendered. The debtor, the one who owes the money, would have no choice but to give the creditor the interest.

The idea of securing a debt before the court orders a judgment must sound great to creditors in Arizona but it begs the question, what is the catch? The creditor better have a good case. Arizona courts only grant pre-judgment attachments in limited cases as authorized by Arizona statutes and case laws. The court is reluctant to order pre-judgment attachments because by doing so, the court is essentially declaring the creditor victorious without the debtor being afforded his day in court to present his case.

The good thing for landlords is that they typically have a good case. A tenant occupied the home and failed to tender payment to the landlord. Arizona statutes and Arizona case law will generally allow a landlord to secure the debt before a judgment is rendered. If you are a landlord who is trying to recover a debt, or even a tenant who is worried about a pre-judgment attachment, feel free to contact me at my office.