Kalway Comes for Transfer Fees:
Klatt v. SunBird Golf Resort Homeowners Association
Four years after Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), Arizona homeowners’ associations are still testing how far they can stretch a general amendment clause. In Klatt v. SunBird Golf Resort Homeowners Association, Inc., No. 1 CA-CV 25-0709, 2026 WL 1694657 (Ariz. App. June 11, 2026) (mem. decision), the Court of Appeals answered the latest attempt with a short and unambiguous “no.”
Background on this HOA case
SunBird is a 1,600-home, age-restricted community near a golf course the association does not own.
Since 1999, the CC&Rs have said the golf course is not a common area.
The 2015 CC&Rs went further. Section 9.2 said neither the association nor its members would be responsible for the costs of operating the course, and Section 6.3(A) excluded the course from the common-area expenses members pay. A buyer reading those documents would reasonably conclude that his assessments would never prop up a private golf business.
In 2021, a majority of owners amended the CC&Rs to create a fund to maintain, repair, and improve areas “affecting” the association, including the golf course, and to pay for it with a $300 capital improvement assessment on anyone who bought a lot after the amendment passed. Mr. Klatt, who bought in 2018, sued for a declaration that the amendment was void under Kalway. The superior court agreed, and the Court of Appeals affirmed.
The association argued that Kalway, which bars non-unanimous amendments that are not tethered to the original CC&Rs, only protects existing owners from new burdens, and that this amendment burdened only future buyers.
In effect, Mr. Klatt would never pay the $300, so what was his complaint?
The court of appeals rejected the argument. CC&Rs are a contract between the association and each lot owner, and the declaratory judgment statute lets any person interested under a written contract test its validity. More important, an amendment that applies only to new owners is still a restrictive covenant that affects every existing owner’s ability to sell. The court offered a pointed hypothetical. Suppose the association lifted the 55-and-older restriction or adopted a short-term rental ban but declared it applied only to future owners. Nothing in Kalway would bar current owners from challenging that. The same logic applies to a fee that attaches on sale.
On the merits, the analysis was brief because the association had waived it. It never argued the superior court erred in finding the amendment unreasonable and unforeseeable. The court nevertheless noted that CC&Rs which plainly disclaimed golf course funding could not have given notice that a majority might later require it. The amendment was “entirely new and different in character,” to borrow Kalway’s phrasing, and therefore void. Mr. Klatt was awarded his fees in both courts.
Klatt is a reminder that recorded is not the same as valid.
An amendment can pass with the required vote, be certified by the president, and sit in the county recorder’s office for years, and still be unenforceable if the original declaration never gave notice it could happen.
Owners who find a new obligation in their CC&Rs that no one warned them about have a remedy. They can challenge it, and under Kalway they may win.
If you’re finding yourself in a situation like this and are looking for legal support or representation, reach out to our HOA lawyers. We are here to help!