Cropley v. Recreation

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BERYL CROPLEY; MARCIA FILE; GERALD A. KLAUS, CHARLES LESTER; NADINE E. MEIS; NANCY Q. SHOVLAIN, and all other similarly situated Viewpoint Lake Homeowners, ) ) ) ) ) ) ) Plaintiffs-Appellees, ) ) v. ) ) RECREATION CENTERS OF SUN CITY, ) INC., an Arizona non-profit ) corporation, ) ) Defendant-Appellant. ) __________________________________) EL DORADO OF SUN CITY ) CONDOMINIUMS HOMEOWNERS ) ASSOCIATION, an Arizona ) nonprofit corporation, ) ) Intervening Plaintiff- ) Appellant, ) ) v. ) ) RECREATION CENTERS OF SUN CITY, ) INC., an Arizona non-profit ) corporation, ) ) Defendant-Appellee. ) __________________________________) 1 CA-CV 10-0034 DIVISION ONE FILED: 12/14/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-004740 The Honorable Edward O. Burke, Judge AFFIRMED Ridenour, Hienton & Lewis, P.L.L.C. by Jeffrey A. Bernick Scott S. Wakefield Attorneys for Recreation Centers of Sun City, Inc. Phoenix Burton T. Cohen, P.C. by Burton T. Cohen Attorney for El Dorado of Sun City Condominiums Homeowners Association Scottsdale The Mangone Law Firm, P.C. by Nancy A. Mangone Attorney for Appellees Phoenix W E I S B E R G, Judge ¶1 The Recreation Centers of Sun City ( Recreation Centers ) appeals from a grant of summary judgment to a class of Sun City homeowners seeking interpretation of a 1979 Agreement that allocated Viewpoint Lake. Homeowners responsibility for the maintenance costs of In addition, El Dorado of Sun City Condominiums Association ( El Dorado ) appeals from a separate grant of summary judgment holding that a 1969 Declaration of Restrictions governing property burdened El Dorado s land. surrounding Viewpoint Lake For reasons that follow, we affirm the superior court s rulings. 2 BACKGROUND ¶2 Viewpoint Lake is in Sun City, Arizona. lake are eighty-one single-family residential Around the lots, Lakeview Recreation Center, the El Dorado of Sun City Condominiums, and a Sun Health Properties medical facility. The lake is filled with water drawn from wells on nearby golf courses. Water is pumped from the lake for use on the golf courses, and then water from the wells replenishes the lake. Some of lake s water, however, is lost through evaporation and seepage. ¶3 In July 1969, Arizona Title Insurance and Trust Company ( Arizona Title ), as trustee to Sun City s developer, Del E. Webb Declaration Development of Corporation Restrictions ( Del governing Webb ) recorded Viewpoint Lake. a The Declaration provided that its restrictions shall be made an encumbrance on and an obligation of the real property adjacent to and contiguous provisions stated with addressed that when Tract A maintenance Del Webb [the of closed lake]. the its lake, model A one number of homes, of which lake maintenance would become the responsibility of the owners of lakefront property. Paragraph 5 provided: Commencing July 1, 1970 and so long as the source of water for the lake is . . . wells located on . . . a golf course in the vicinity of the lake, the owners of property fronting on the lake shall be responsible for paying the actual cost of electricity used for pumping the amount of water 3 required to replace water lost as a result of evaporation and seepage. (Emphasis added.) The 1969 Declaration did not clarify how maintenance costs would be allocated among the various owners of lakefront property. It was, however, binding for thirty years and was to be extended for successive ten-year periods unless amended by a vote of the owner or owners of said Tract A, Sun City Unit Sixteen, plus by a vote of the owner or owners of Tract B, Sun City Unit Sixteen, along with a majority vote of the then owners of such encumbered property. 1 ¶4 The Declaration additionally provided for creation of a Viewpoint Lake Management Board ( Board ). 2 The Declaration conferred various rights on the Board, including power to levy assessments . . . against the property surrounding the lake and to pay for replacement of water lost through evaporation and seepage upon a majority vote. ¶5 In 1975, Recreation Centers, a non-profit corporation organized under Arizona law, took title to Viewpoint Lake and several golf courses by agreement with Arizona Title (the 1975 1 In 1971, the 1969 Declaration was amended to regulate the size of boats and boat docking facilities. The amendments were executed by Arizona Title as an owner of Tract C of Sun City Unit 16. 2 Paragraph 8B required the Board to include one (1) member selected by the owner of the lake, one (1) member elected by the owner of any lake front property used for community recreation facilities; and one (1) member elected by the owners of the lake front residential lots. 4 Agreement ). Arizona Title agreed to subsidize Recreation Centers operation of certain Sun City facilities. In turn, Recreation Centers agreed that as owner of the golf courses, it shall pay fifty percent (50%) of all maintenance costs of the lake. Such costs shall become part of the total expense for the operation every of owner the of golf a course. Sun City Recreation residential Centers unit who requires signs a Facilities Agreement or accepts a deed to pay an annual property assessment. ¶6 On Agreement. but left March 1, 1977, the parties amended the 1975 The 1977 Amendment struck Arizona Title s subsidy intact the requirement that Recreation Centers pay fifty percent of lake maintenance costs. ¶7 Disputes soon erupted over the respective liabilities of the residential landowners and Recreation Centers. and 1977, included some water homeowners losses due asserted to position endorsed by the Board. that seepage In 1976 maintenance and costs evaporation, a In 1978, the dispute continued, and in 1979, Recreation Centers counsel notified the Viewpoint Lake Homeowners Association ( the Association ) President Jack B. Pearce that he would place liens on the property of those who declined to pay the additional through evaporation and seepage. 5 amount to cover water lost ¶8 Board member and Recreation Centers President James Wormsley appeared at an April 19, 1979 Board meeting. Pearce proposed a flat assessment fee for the When residential landowners, to be adjusted according to a cost index, Wormsley replied, How about $95.00? ¶9 In a bulletin sent to residential landowners dated July 17, 1979, Pearce reported that a new agreement had been reached between Del Webb, Recreation Centers, and the Association providing for a $95 assessment in 1979, subject in 1980 to increase based upon the increase in the Consumer Price Index. Board President C.D. Ferguson later confirmed this and added that the agreement of last June settled only 1978 and 1979 and did not apply the 1977 billing which stands . . . as it was before the June 1979 agreement. ¶10 The 1979 Agreement provided that all costs of lake maintenance, including the cost of pumping replacement water, were to be allocated so that in 1979, each lot owner would pay a fee of $95; Recreation Centers would pay all remaining costs for maintenance . . . and for electricity to pump replacement water; and the parties respective shares would be adjusted annually based on the Consumer Price Index for any succeeding year. ¶11 The 1979 Agreement also said that it was to clarify and allocate among [the Association and Recreation Centers] all 6 costs and charges attributable to the maintenance and upkeep of the lake in accordance with the 1969 Declaration and the 1975 Transfer Agreement. Contemporaneous correspondence stated that the 1979 Agreement resolved the parties differences once and for all by a permanent and equitable formula. President of the Recreation Association, Centers, and signed the Agreement. ¶12 a Del Wormsley Webb as executive Pearce as President vice of president It was not recorded. From the date of signing until 2008, the residential landowners paid assessments levied by the Board pursuant to the Consumer Price Index formula. Recreation Centers continued to pay of fifty percent as owner the golf course, and the residential landowners paid approximately seventy percent of the remaining fifty percent of maintenance costs. 3 ¶13 In $302.10 2008, for lake Recreation Centers each residential maintenance. President On Nichols landowner was assessed December 10, however, Board Chairman informed Klaus that Recreation Centers would decrease its funding of lake maintenance after January 1, 2009. Nichols said that costs had increased and had not been fairly allocated and proposed future assessments based upon linear feet of lakeshore, which more than 3 Responsibility for the remaining thirty percent is not at issue. 7 tripled the assessments of residential landowners. In February 2009, the Board billed each residential landowner $1,032.25. Six owners 4 filed a class action for declaratory and ¶14 injunctive relief. the class, which The Plaintiffs successfully moved to certify consisted lakefront properties. of the owners of the eighty-one El Dorado then intervened and filed a complaint contending that the Declaration imposed no burden on its tract, even though El Dorado had made voluntary maintenance payments for thirty years. The Class Plaintiffs and El Dorado each moved for summary judgment, and Recreation Centers filed cross-motions. The superior court granted judgment to the Class Plaintiffs and denied Recreation Centers opposing cross-motion. It also Centers denied El motion. Dorado s Recreation motion Centers and granted and El Recreation Dorado timely appealed. DISCUSSION Waiver of 1969 Declaration ¶15 We review a grant of summary judgment de novo and, in doing so, view the evidence in the light most favorable to the non-moving party. Inc., 197 Ariz. Unique Equip. Co. v. TRW Veh. Safety Sys., 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999). Summary judgment is warranted when there is no genuine issue of 4 The plaintiffs are Beryl Cropley, Marcia File, Gerald A. Klaus, Charles Lester, Nadine E. Meis, and Nancy Q. Shovlain. 8 material fact in dispute. Ariz. R. Civ. P 56(c)(1). Interpretation of deed restrictions, Wilson v. Playa de Serrano, 211 Ariz. 511, 513, ¶ 6, 123 P.3d 1148, 1150 (App. 2005), and of statutes poses legal questions subject to de novo review. In re Estate of Friedman, 217 Ariz. 548, 553, ¶ 13, 177 P.3d 290, 295 (App. 2008). ¶16 Recreation Centers contends that the trial court erred in failing to void the 1979 Agreement and in failing to find that the Agreement had not validly amended the 1969 Declaration. When a grantee accepts a deed with restrictions, he has assented to the restrictions. Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 47, ¶ 19, 226 P.3d 411, 416 (App. 2010). Landowners, however, may amend or even eliminate restrictions if they follow prescribed procedures. See La Esperanza Townhome Ass n v. Title Sec. Agency of Ariz., 142 Ariz. 235, 239-40, 689 P.2d 178, 182-83 (App. 1984). An amendment is an action to alter, extend, or revoke existing restrictions. Riley v. Boyle, 6 Ariz. App. 523, 525, 434 P.2d 525, 527 (1967). But amendments that do not comply with the stated procedures are null and void. See Multari v. Gress, 214 Ariz. 557, 560, ¶ 19, 155 P.3d 1081, 1084 (App. 2007) (private deed restrictions invalid for failure to comply with prior declaration); Shamrock v. Wagon Wheel Park Homeowners Ass n, 206 Ariz. 42, 46, ¶ 16, 75 P.3d 132, 136 (App. 9 2003) (noncompliance with amendment process meant modification never took effect). ¶17 1979 The superior court held as a matter of law that the Agreement was a valid settlement agreement prospectively governed the maintenance assessments. that The court did not expressly address Recreation Centers contention that to validly impose these terms required an amendment passed by a majority vote of property owners. We note, however, that the 1979 Agreement was not termed an amendment but instead stated that it was to clarify and allocate responsibility for lake maintenance assessments. The Class Plaintiffs respond that the 1979 Agreement simply supplied a term that was missing in the 1969 Declaration. We, however, need not resolve this debate because we conclude that Recreation Centers waived its right to challenge the validity of the 1979 Agreement by nearly thirty years of acquiescence and knowing conduct consistent with that Agreement. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996) (appellate court may affirm superior court ruling if correct for any reason). ¶18 A party s persistent failure to object to violations of a restrictive covenant may result in waiver and abandonment of the restriction. App. 2001) (waiver Mackey v. Griggs, 61 S.W.3d 312 (Mo. Ct. found from residential uses in subdivision). 10 existence of widespread non- Waiver requires proof of the intentional relinquishment of a known right. Lyles v. BMI, Inc., 355 S.E.2d 282, 285 (S.C. 1987) (landlord s acceptance of base rent resulted without in demanding waiver). In rent Riley, determined for example, by gross the sales plaintiffs sought to enforce restrictions that allowed amendment by a 51 percent vote. 6 Ariz. App. at 524-25, 434 P.2d at 526-27. The trial court found an amendment that exempted one subdivision lot from the restrictions, passed by a 51 percent vote, valid. Id. at but 525, 434 P.2d at 527. We found the amendment void remanded for determination of whether the residents had waived or abandoned the restrictions by allowing others homes to be built in violation of the restrictions. at 527-28. Id. at 525-26, 434 P.2d See also Baldischwiler v. Atkins, 864 S.W.2d 853, 855 (Ark. 1993) (right to modify restrictive covenants abandoned after five years of non-use). Given that Recreation Centers knowing and repeated failure to object to the validity of the 1979 Agreement is undisputed, no remand is necessary here. ¶19 Analogous contract principles support our conclusion. When an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement. Abrams v. Horizon Corp., 137 Ariz. 73, 79, 669 P.2d 51, 57 (1983) (quoting 11 Restatement (Second) of Contracts § 202(4) (1979)). Centers has waived any interpretation of the Recreation 1979 Agreement contrary to that adhered to by the parties over the years since that Agreement. ¶20 We therefore affirm rejection of Recreation Centers claims that an alternative assessment formula should apply or that the amendment 1979 Agreement procedures. 5 failed We next to comply consider with necessary whether the 1979 private agreement Agreement resolves this dispute. Possible Application of A.R.S. § 33-440 ¶21 Recreation Centers argues that a cannot resolve the assessment dispute because A.R.S. § 33-440 (Supp. 2009) controls and precludes the 1979 Agreement. The statute provides: A. An owner of real property may enter into a private covenant regarding that real property and the private covenant is valid and enforceable according to its terms if all of the following apply: 1. The private covenant is not prohibited by any other existing private covenant . . . and does not violate any statute governing the subject matter of the private covenant that is in effect before the effective date of this section. 5 In light of the waiver by Recreation Centers, we need not decide whether laches also would bar a challenge to the 1979 Agreement. 12 2. The owner of the real property affected by the private covenant . . . ha[s] consented to the private covenant. 3. Any consent requirements contained in . . . any existing private covenant . . . have been met. B. A private covenant is deemed constitute an amendment to any private covenant . . . unless the covenant expressly violates an provision of the existing private or declaration. not to existing private express covenant C. For purposes of this section: 1. Declaration has the prescribed in § 33-1802. same meaning 2. Private covenant means any uniform or nonuniform covenant, restriction or condition regarding real property that is contained in any deed, contract, agreement, or other recorded instrument affecting real property. ¶22 By law, [n]o statute is retroactive unless expressly declared therein. A.R.S. § 1-244 (2002). Therefore A.R.S. § 33-440, which became effective on September 26, 2008, does not control here. ¶23 would Even assuming arguendo that the statute applied, we find no conflict between it and the 1979 Agreement. Although the 1979 Agreement predates the 2008 enactment, it is validated under the statute s express terms. Section 33- 440(A)(1) provides for enforcement of a private covenant if it is not prohibited by any other existing private covenant or 13 declaration affecting the real property. provides for covenants recognition by and precluding inconsistent with them. Thus, the statute enforcement those post-§ of pre-§ 33-440 includes contained in property. any A.R.S. any . . § covenants Id.; see also § 33-440(A)(3) (enforcing consent requirements of existing private covenants). covenant 33-440 covenant . regarding agreement 33-440 . (C)(2). . So . real A private property affecting viewed, the real 1979 Agreement is a viable agreement affecting real property under § 33-440(C)(2) and expressly validated by § 33-440(A)(1). ¶24 Recreation Centers nevertheless contends that § 33- 440 applies only to planned communities because § 33-1802 (3) and (4) state that a declaration includes any instruments, however denominated, that establish a planned community and that a planned community must include a real estate development which includes real estate owned and operated by a nonprofit corporation . . . created [to] . . . manag[e] . . . the property and in which owners . . . are mandatory members and are required to pay assessments . . . . Based on this language, Recreation Centers asserts that § 33-440 cannot apply because the Board owns no property. ¶25 We, however, do not read the statute so narrowly. Under § 33-440(A)(1), a private covenant must not be precluded by any other existing private covenant or declaration affecting 14 the real property. (Emphasis added.) declaration in the context While the statute defines of planned communities, definition of private covenant is not so limited. 440(C)(2). Therefore, even if it did apply, § the See § 3333-440(A)(1) would not invalidate the 1979 Agreement. 6 Duration of the 1979 Agreement ¶26 We binding now consider settlement of whether indefinite the 1979 duration agreement, which is a question of law. Agreement or a was a short-term See US West Commc ns, Inc. v. Ariz. Corp. Comm n, 185 Ariz. 277, 280, 915 P.2d 1232, 1235 (App. 1996). our Well established contract principles guide interpretation, such as giving effect to the parties intent, id., and considering the language used in the context of the circumstances. Potter v. U.S. Specialty Ins. Co., 209 Ariz. 122, 124, ¶ 7, 98 P.3d 557, 559 (App. 2004). We also would attempt to give reasonable, lawful, and effective meaning to all its terms. ¶27 Restatement (Second) of Contracts § 203(a) (1981). The Agreement stated that residential landowners assessments would be adjusted according to a formula for any succeeding year Recreation Centers and did not include a termination argues that the Agreement was date. merely a temporary solution and cites Ferguson s 1980 letter, which said 6 We do not consider Recreation Centers alter ego argument because it was not addressed below and apparently did not shape the trial court s decision. 15 that the Agreement applied to 1978 and 1979. That letter, however, affirmed the adjusted billing described in Pearce s bulletin and that the 1977 and 1978 assessments were settled. Although Ferguson insisted on using the prior method for the 1977 payment, he did not say that the prior method would apply after the 1979 Agreement. ¶28 Moreover, formula in the by including Agreement, the the Consumer parties Price clearly Index contemplated possible future increases and sought to resolve how to deal with those future increases. Recreation Centers argues that the lack of a termination date makes the Agreement terminable at will by either party. 7 Declaration that But the Agreement was binding for was based thirty upon years the and 1969 would be extended for successive ten-year periods unless amended by a vote of the owners of Tract A and Tract B and a majority vote of the owners Agreement s of reference the to encumbered the property. Consumer 7 Price Given Index, and the its See Restatement (Second) of Contracts § 33 (if a contract calls for successive performances but is indefinite in duration, it is commonly terminable by either party, with or without a requirement of reasonable notice ). See also UCC § 2-309(2) ( If the contract provides for successive performances but is indefinite in duration, it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party. ). Comment 5 notes that [w]hen the arrangement has been carried on by the parties over the years, the reasonable time can continue indefinitely and the contract will not terminate until notice. 16 purpose, which was to resolve possible assessment disputes during the operation of the 1969 Declaration, its term can only be seen as being that of the underlying 1969 Declaration. ¶29 Furthermore, we are not persuaded that omission of the word settlement is significant. The Agreement was prepared after Recreation Centers threatened to sue landowners who had not paid the new assessments, and Wormsley then suggested $95 when the parties discussed adopting a flat fee subject to annual adjustments. Accordingly, the 1979 Agreement was adopted in settlement a of bona fide dispute, was enforceable, and was subject to the same term as the 1969 Declaration. 8 Legal Capacity of the Association ¶30 Recreation Centers alternatively argues that the Association was not a legally constituted organization, that the 1979 Agreement was void, and that only the Board could allocate the maintenance assessments. Three parties executed the 1979 Agreement, including Pearce as the Association s president and Wormsley as Recreation Centers president. ¶31 Whether the Association was legally constituted is not dispositive of its members rights under the 1979 Agreement. One who deals with an association as a legal entity capable of transacting business and who thus receives money or value from 8 Given this conclusion, we need not consider whether Recreation Centers was estopped from terminating the Agreement. 17 that association, is estopped from denying the legality of its existence or right to contract. Assoc. Students of Univ. of Ariz. v. Ariz. Bd. of Regents, 120 Ariz. 100, 103, 584 P.2d 564, 567 (App. 1978) (quoting State Farm Mut. Auto. Ins. Co. v. Mackechnie, 114 F.2d 728 (8th Cir. 1940)); accord Spurlock v. Santa Fe Pac. R.R., 143 Ariz. 469, 484, 694 P.2d 299, 314 (App. 1984) (parties who contract with an entity as a corporation are estopped in later lawsuit from denying its corporate existence). Therefore, because Recreation Centers treated the Association as an entity capable of entering the 1979 Agreement and certainly benefitted from assessments collected from Association members, Recreation Centers cannot now complain about the Association s status. ¶32 Although Recreation Centers cites Wolf Corp. v. Rollin, 17 Ariz. App. 250, 251, 497 P.2d 70, 71 (1972), for support, that case invalidated a contract entered by a foreign corporation that had not complied with corporate formalities or registered to do business pursuant as required by Arizona law. The Association is not a foreign corporation and does not face such a barrier. ¶33 Recreation Centers alternative argument that the Association lacked authority to allocate assessments finds no support in the Declaration. The Declaration required lakefront landowners to pay for maintenance but provided no assessment 18 formula. The assessments Declaration but did not also the the grant authorized exclusive determine the allocation of costs. Property (Servitudes) § 6.5(1)(a) Board Board to levy power to See Restatement (Third) of (2000) (unless otherwise limited by statute or declaration, a common-interest community may raise reasonably necessary funds by levying assessments and charging fees for services or use of common property). We accordingly reject this argument and affirm summary judgment on the assessment issue. We next address El Dorado s contention that the 1969 Declaration did not burden its property. The 1969 Declaration and El Dorado s Property ¶34 El Dorado challenges the superior court s conclusion that its property, which is within Tract C and borders Viewpoint Lake, is subject to the 1969 Declaration. In 1969, Del Webb owned both Tract A and C, and the 1969 Declaration stated: These restrictions shall be made an encumbrance on and an obligation of the real property adjacent to and contiguous with Tract A, Sun City Unit Sixteen (16) by reference hereto in the Declaration of Restrictions recorded in connection therewith. The foregoing restrictions . . . run with the land and shall be binding on all persons owning the real property to which these restrictions are made an encumbrance . . . . Deeds of conveyance of said property . . . may contain the above restrictive covenants by reference to this document but whether or not such reference is made in such deeds . . ., each and all of such restrictive 19 covenants shall be valid the respective grantees. and binding upon El Dorado contends that this provision created a subsequent filing requirement as a condition to imposing the Declaration s burdens on lakefront property. ¶35 We condition will not precedent construe absent a contractual clear requiring such a construction. and provision unequivocal as a language E.g., L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 182, 939 P.2d 811, 815 (App. 1997) (finding no condition precedent absent proof of intent to make payment only from one fund and not otherwise). No language in the 1969 Declaration reveals such an intent. Moreover, the 1971 amendment indicates that Del Webb and Arizona Title understood that Tract C was a burdened estate under the 1969 Declaration before any subsequent filing could occur. ¶36 renders El the contrary, condition a Dorado contends that the subsequent filing language subsequent filing is trial precedent to decision meaningless. required, burdening court s Tract but C it with To is the the not a 1969 Declaration. ¶37 El Dorado alternatively argues that the Declaration imposed no servitude because it cannot satisfy the statute of frauds. According to the Restatement, a writing must identify the parties . . ., describe the burdened estate and it must set 20 forth the nature of the servitude, or the essential terms of the obligation. cmt. f. Restatement (Third) of Property: Servitudes § 2.7 The 1969 Declaration created restrictions with respect to Viewpoint Lake and parcels adjacent to and contiguous with the lake. El Dorado concedes that its property is contiguous with the lake. Furthermore, the 1971 Amendment defined Tract C as being in common ownership with Tract A and contiguous to it. Because paragraph 12 of the 1969 Declaration extended the restrictions and covenants to property adjacent to the lake, El Dorado s arguments fail. ¶38 El Dorado nonetheless cites Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d 432 (1982), but that case held that a legal description requires a certainty such that a surveyor can go upon the land and locate the easement from such description. Id. at 132, 650 P.2d at 434 (quoting Vrabel v. Donahoe Creek Watershed Auth., 545 S.W.2d 53, 54 (Tex. Ct. Civ. App. 1977)). The deed described the servient estate as any adjoining property owned by the Grantor . . . either by direct ownership or as beneficiary of a real estate trust. 131, 650 P.2d at 433. One could not determine Id. at from the description which parcels the grantor owned as beneficiary of a real estate trust. Id. at 132, 650 P.2d at 434. Moreover, the individual granting the easement to the adjoining property was not the property s record owner. 21 Id. ¶39 Here, no specialized knowledge is needed to determine which parcels were subjected to the 1969 Declaration. The Declaration expressly encumbered Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it (including Tract C). The 1971 contiguous to Declaration A. also Therefore, clarified it gave that Tract constructive C notice was by identifying the burdened property with reasonable certainty and by accurately stating its terms, purpose, and the nature of the right claimed. See Villas at Hidden Lakes Condo. Ass n v. Geupel Constr. Co., Inc., 174 Ariz. 72, 76-77, 847 P.2d 117, 121-22 (App. 1992) (recorded amendment incorrectly referred to revoked declaration but could impart notice identified its purpose and the property). because it As Recreation Centers observes, anyone tracing the ownership of Tract C would discover the 1969 Declaration, that Arizona Title beneficially owned Tracts A and C in July 1969, and that the property burdened by the 1969 Declaration included Tract A and all contiguous property. ¶40 Accordingly, the 1969 Declaration can be enforced against El Dorado s property and Tract C was burdened from the execution of the 1969 Declaration. CONCLUSION ¶41 A.R.S. We affirm the grants of summary judgment. § 12-341.01(A)(2003), we 22 award the Class Pursuant to Plaintiffs their reasonable attorneys fees incurred on appeal as well as their costs subject to compliance with Arizona Rule of Civil Appellate Procedure 21. reasonable attorneys We also award Recreation Centers its fees pursuant to the same statute but limit the fees and costs to those incurred in responding to El Dorado s appeal. See Pinetop Lakes Ass n v. Hatch, 135 Ariz. 196, 198, 659 P.2d 1341, 1343 (App. 1983) (action to enforce deed restriction arose out of contract for purposes of fee award under § 12-341.01). El Dorado has not prevailed, and thus we decline its request for attorney s fees. /s/__________________________ SHELDON H. WEISBERG, Judge CONCURRING: /s/_________________________________ PHILIP HALL, Presiding Judge /s/_________________________________ DIANE M. JOHNSEN, Judge 23

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