Heritage Heights Home Owners Ass'n v. Esser, 1

• Decision Date: 24 May 1977
• Docket Number: CA-CIV,No. 1,1
• Citation: 115 Ariz. 330,565 P.2d 207
• Parties: HERITAGE HEIGHTS HOME OWNERS ASSOCIATION, an Arizona Corporation, Appellant, v. Fred R. ESSER and Margaret J. Esser, his wife, Appellees. 3218.
• Court: Arizona Court of Appeals

Page 207

565 P.2d 207

115 Ariz. 330

HERITAGE HEIGHTS HOME OWNERS ASSOCIATION, an Arizona Corporation, Appellant, v. Fred R. ESSER and Margaret J. Esser, his wife, Appellees.

No. 1 CA-CIV 3218.

Court of Appeals of Arizona, Division 1, Department A.

May 24, 1977.

Martori, Meyer, Hendricks & Victor, P. A., by Jones Osborn II, Phoenix, for appellant.

Fred R. Esser in pro per.

OPINION

HAIRE, Judge.

This case involves a dispute concerning the removal of a wooden "grapestake" fence constructed in violation of restrictions in a subdivision deed. The plaintiff Heritage Heights Home Owners Association brought suit to enforce the restriction. After a trial based on stipulations, the trial judge entered a judgment ordering the plaintiff Association to grant a five year variance for the offending fence within 30 days or he would dismiss the suit with prejudice. He also denied the Association recovery of its costs and attorneys' fees. The Association appealed both the forced grant of the five year variance and the denial of costs and attorneys' fees. We reverse the trial court's resolution of both of these issues.

Inherent in the judgment that the Association grant a five year delay in the removal of the offending fence is a determination with which both parties now agree, that the deed restriction regarding this type of fence is valid and enforceable. The issues with which we are presented on this appeal are very narrow: granting the validity and enforceability of the restriction in the deed, 1) was the decision of the trial judge that the owner of the offending fence be given five years in which to remove it reasonably supported by evidence in the record; and 2) was there error in the decision of the trial court that each party bear its own attorneys' fees and costs, where there was an express provision in the deed that the party bringing an action to enforce deed restrictions would recover attorneys' fees and costs if he prevailed.

The case began as an action for an injunction by the plaintiff Association. Heritage Heights Home Owners Association was formed by the developer of a residential subdivision in 1970, with the plan being that every resident of the subdivision would automatically be a member of the Association. Membership rights in the Association, along with attendant privileges and restrictions, were embodied as restrictive covenants and imposed on every conveyance of the property.

The Home Owners Association remained under the control of the developer from 1970 through 1972, while the lots were originally being sold. Violations of the deed restrictions, usually minor in nature, were not pursued during these early years. In 1972 the individual homeowners took control of the Home Owners Association and began a program of enforcement, attempting to eliminate violations already existing and to prevent further violations.

Pursuant to this policy, the Association sent newsletters in March, April and July of 1973 reminding the residents of the restrictions. It also proceeded to correct already existing violations by various means, including negotiation and instigation of legal proceedings where necessary. It was stipulated that the Association had granted and would grant permanent variances for those fences, such as combination brick and masonry or wrought iron and block fences, which it felt substantially met the purposes for which the deed restrictions were imposed. For other fences, such as the wood "grapestake" fence in question, which, unlike this fence, had been constructed before the Association began its program of enforcement, the usual policy was to allow the homeowner a five year variance within which to remove the offending fence.

Defendant Esser began the construction of his wooden "grapestake" fence in October of 1973, after the three newsletters had been sent. On October 15, 1973, one of the members of the Board of Directors of the Association noticed the beginning of the construction and contacted Mr. Esser, informing him that such a fence would be in violation of deed restrictions. Although the board member requested that Mr. Esser desist from construction, he refused, and completed the fence.

After some preliminary delays, the matter was tried by stipulation, with a resulting judgment in essence as above described: that the plaintiff must give the defendants five years in which to remove the fence, and no costs or attorneys' fees to be awarded to the plaintiff Association.

When a grantee accepts a deed containing restrictions, he assents to these restrictions and is bound to their performance as effectively as if he had executed an instrument containing them. Murphey v. Gray, 84 Ariz. 299, 305, 327 P.2d 751, 755 (1958); Fort Dodge, Des Moines & Southern Railway v. American Community Stores Corp., 256 Iowa 1344, 131 N.W.2d 515, 521, 522 (1964).

The enforcement of such restrictions is by means of an injunction, in which the trial court has the power to structure the remedy so as to do equity between the parties. However,...