This case involved a dispute between an association member (Owner) and both her homeowners association (Association) and neighboring association members/property owner (Neighboring Owners) over the characterization of an improvement constructed on Neighboring Owners property and whether or not Associations governing documents permitted Neighboring Owners to keep two donkeys, and later a foal, on their property.

In 2016, Neighboring Owners obtained consent from Associations architectural review committee to construct a barn on their property. Later that year, when the structure was nearly completed, Owner filed suit against Neighboring Owners and Association seeking to enjoin completion of the structure and use of the structure to store vehicles, and for the boarding of donkeys or the storage of items relating to donkeys. The trial court granted Neighboring Owners and Association summary judgment and awarded them attorneys fees and costs. Thereafter, Owner appealed the trial courts judgment.

In her complaint, Owner alleged that Associations CC&Rs prohibit Neighboring Owners from keeping donkeys on their property. The allegation was based on Owners conclusion that Associations CC&Rs set forth an exclusive list of what animals are allowed, and that list does not include donkeys. In reviewing the language contained in the CC&Rs, the trial court found that the CC&Rs expressly prohibited poultry, fowl and swine, but there was no mention of donkeys at all. There was also a provision that expressly permitted horses.

The trial court further found that the CC&Rs did not purport to identify all permissible livestock and poultry and they did not include a catch-all provision indicating that the listed animals were the only permissible animals allowed in the community. Based on the content and language of the CC&Rs, the trial court concluded the drafters of the CC&Rs did not intend to exclude donkeys as permissible animals that could be kept on properties within the community.

On review, the appellate court ruled that Associations CC&s did not preclude Neighboring Owners from keeping donkeys on their property and therefore, the trial courts granting of summary judgment in favor of Neighboring Owners and Association was appropriate.

Owner also contended that Neighboring Owners were improperly using the structure, that was approved as a barn, to store vehicles and donkeys, but Owner apparently conceded in the trial court proceedings that Neighboring Owners had actually been using it as a barn. Thus, because Owner could not prove an improper use of the structure, there was no dispute and the trail courts granting of summary judgment in favor of Neighboring Owners and Association on that issue was proper.

Finally, because Neighboring Owner and Association had prevailed in the defense of the claims alleged by Owner, the trial courts award of attorneys fees and costs was also affirmed by the appellate court.

UNPUBLISHED Arizona Appellate Court decision (December 24, 2019).

See case decision: Greenberg_v._McGowan