Arbitrary & Capricious – Directors

 From Arizona Case Law

Arbitrary Action has, in the administrative law context, been defined in this state as “unreasoning action,…in disregard for facts and circumstances” Shaffer v. Arizona State Liquor Board 197 Ariz.405, 410-411; 4P.3d 460, 465-466 (App. 2000)

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“An arbitrary action is an unreasoning action taken without due consideration and in disregard of the facts and circumstances. It is an action taken capriciously or at pleasure, or an action taken without adequate determining principle”. Maricopa County Sheriff’s Office v. Maricopa County Employee Merit System Commission. 211 Ariz. 219,222; 119 P.3d 1022, 1025 (2005)

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Whatever the HOA does, it cannot forsake its express duty to enforce the CC&Rs, and, the homeowners are entitled to judicial recourse to ensure that the CC&Rs are being enforced. Johnson v. Pointe Community Ass’n.

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And, the association has a duty to treat all members fairly in enforcing the CC&Rs. Enforcing the CC&Rs against one violating member while ignoring other violators is a gross example of when the duty to treat “fairly” is breached. Tierra Ranchos HOA v. Kitchukov.

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Black’s Law Dictionary 6^th Ed. © 1990 defines ‘arbitrary’ as,

“In an unreasonable manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; non-rational; not done or acting according to reason or judgment. . .Without fair, solid and substantial cause. . .Willful and unreasoning action, without consideration and regard for facts and circumstances presented. . . Ordinarily, ‘arbitrary is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in nature of things.”

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News Release – December 2010

Following a late November jury trial spanning two weeks. A Harris County jury awarded damages and attorneys’ fees totaling almost $500,000.00 against a Houston area Tanglewood Homes Association for its violations of deed restrictions. The jury found that over a two year period the community association for this Galleria-area neighborhood acted in an arbitrary and capricious manner towards the complaining homeowners. Group Campaigns to Rein in Out of Control Homeowners Associations.

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