September 13th, 2008

As seen in The Arizona Republic
by: Clint Goodman, Esq.

Question: I live in a gated community.  Recently, the board sent a letter to all homeowners saying city and county ordinances do not apply to our neighborhood because we are a “private” community.  I don’t believe this is true. Who is right?               

Answer: State and local agency jurisdiction to enforce state and local laws does not end where “private” property boundaries begin.  For example, structurally unsound association buildings may be condemned by code enforcement; and loud, unruly neighbors may be arrested by police for disorderly conduct.   The mere fact that a state or local law was broken on private property makes no difference.  The police still respond to emergency calls and code enforcement still responds to code violations.  Thus, “private” associations and their homeowners are still subject to state and local laws.

So can associations enforce state and local laws along with state and local agencies?

Community associations are governed by a Declaration of Covenants, Conditions and Restrictions (“CC&Rs”).  Many CC&Rs have a general provision in them that require strict compliance with all federal, state, city and county laws and ordinances.  In these “private” communities, associations are obligated to ensure they and their members do not violate any city and county ordinances. These contractual obligations are typically satisfied by fining members, and, if appropriate, judicial intervention.

If state and local laws are not expressly incorporated into the CC&Rs, an association should still do everything in its power to ensure that dangerous conditions do not exist in the common areas of the community.