A new Arizona Supreme Court decision addresses whether a prevailing party in a neighbor dispute that also involves covenants, conditions, and restrictions (CC&Rs) can recover attorney’s fees.
Here’s the story:
Picture two patio homes in a Tucson subdivision, built only a few feet apart.
In 2021, John and Anita Dryja replaced their air conditioner and moved it to a new location outside the home. Their neighbor, Stephanie Burkett, complained that “she could hear noise from the new unit and feel its vibrations inside her home, particularly in her primary bedroom.”
When talks to resolve the problem failed, Burkett complained to the homeowners association (HOA), who conducted an investigation and concluded that the unit was installed properly and was not “objectionably loud.” Burkett then sued both the Dryjas and the HOA, claiming the unit violated the community’s anti-nuisance covenant. After a three-day bench trial, she lost every claim.
The real fight, however, happened over attorney fees.
The HOA’s CC&Rs – legally binding documents that set rules, use limits and maintenance responsibilities in a community of this type – said that in any court proceeding, “in connection with” enforcing the covenants, the prevailing party “shall be entitled” to reasonable attorney fees.
The trial court awarded the HOA $60,000 but denied fees to the Dryjas. Its reasoning was that a nuisance claim between neighbors is really a tort, not a contract claim, and the court of appeals agreed. However, on October 28, 2026, a unanimous Arizona Supreme Court reversed the trial court’s fee ruling and vacated the court of appeals’ opinion in Burkett v. Dryja, No. CV-25-0143-PR (Ariz. Oct. 28, 2026).
The court made three key points:
- First, recorded CC&Rs are a contract between neighbors, not just between each owner and the HOA.
- Second, a covenant against nuisances is enforceable as a contract, even though tort law already prohibits nuisances.
- Third, when the parties have their own fee clause, the statutory “but-for” test under A.R.S. § 12-341.01 does not apply, and the clause’s wording controls. Because the Dryjas prevailed, the clause entitles them to their fees. The court sent the case back for the trial court to set the amount and awarded the Dryjas their fees and costs on appeal and in the Supreme Court.
The fee clause Ms. Burkett invoked against her neighbors now leaves her paying their lawyers as well as her own. The court viewed that symmetry as sound policy. In its words, a fee provision that applies to all prevailing parties “both permits every owner to insist on compliance with meritorious claims and deters claims that lack merit.” A mandatory “prevailing party” clause doesn’t take sides; it raises the stakes for everyone.
The takeaway:
The air conditioner kept running, and so did the legal bills. Whatever your covenants say about noise, the fee clause may decide who pays for the dispute.
Patty Premeau is a State Bar of Arizona Certified Real Estate Specialist and respected litigator who navigates complex commercial and real property disputes across the entire resolution spectrum—from strategic negotiation and risk mitigation through trial and appeals.