Here’s the Order by which the Arizona Supreme Court agreed to review a case we’ve been following.
The main issue is whether the Arizona condominium statute, which allows the condo association upon termination of the condominium regime, to sell individually-owned units is a taking under the Arizona Constitution.
Here are the questions presented:
FURTHER ORDERED: GRANTING IN PART the petition and cross-petitions as to these rephrased questions:
1. Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?
2. If any common elements or units in a condominium are to be sold pursuant to a condominium termination agreement, does A.R.S. § 33-1228 require all the common elements and units to be part of that sale?
3. If a contract incorporates an unconstitutional statute by reference, are the terms of that statute enforceable as to the contracting parties?
4. If a condominium declaration incorporates a statute by reference, are subsequent statutory amendments incorporated into the agreement?
We filed an amicus brief in the Court of Appeals, which argued that the statute should be construed to allow only the sale of the entire building, not individual units, but if the statute is read to permit picking off individual units for forced sale, then the statute allows for an unconstitutional and uncompensated taking.
The New York Times covered a very similar situation in Florida – “Their Retirement Plan Did Not Include Being Forced to Sell Their Condo” (Feb. 24, 2023).
Stay tuned for more as the case progresses. The argument date will be announced.
Order, Cao v. PFP Dorsey, No. CV-22-0228-PR (Ariz. Aug. 23, 2023)