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By: Jennings, Strouss & Salmon, PLC

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Arizona Supreme Court Issues Guidance Concerning HOA Amendments
April 25, 2022
On March 22, 2022, the Arizona Supreme Court issued a favorable opinion for individuals residing in a community governed by a Homeowners’ Association (“HOA”) who may wish to challenge the validity of amendments to the governing documents passed by a majority vote. This recent decision may apply most directly to those homeowners who oppose short-term rentals in their communities. In Arizona, many residential planned communities are governed by an HOA who seeks to enforce covenants, conditions, and restrictions (“CC&Rs”). CC&Rs are typically the most important governing

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COVID-19 AND REOPENING BUSINESSES IN ARIZONA
May 7, 2020
Arizona, like many states, will gradually allow the reopening of businesses that were closed due to the COVID-19 pandemic.  On April 29, 2020, Arizona Governor Doug Ducey issued Executive Order 2020-33, Returning Stronger.  On May 4, 2020, Arizona Governor Doug Ducey issued Executive Order 2020-34, Building on COVID-19 Successes.  The purpose of these Executive Orders is to permit the reopening of certain non-essential businesses, while providing guidance related to public health and safety.
Executive Order 2020-33, Returning Stronger, allows retailers that were classified as non-essential businesses to reopen

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COVID-19 AND SMALL BUSINESS EVICTIONS IN ARIZONA
April 30, 2020
In an effort to protect small businesses, Arizona Governor Doug Ducey issued Executive Order 2020-21 Prohibiting Small Business Evictions.  While the Executive Order was issued primarily to prevent commercial landlords from evicting commercial tenants, there are other provisions in the Executive Order that are designed to provide financial relief to these small businesses during the COVID-19 crisis.
First, the Executive Order temporarily suspends “a commercial eviction action including lock out, notice to vacate, or any other attempt to inhibit the operations of a business” for tenants unable

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Does COVID-19 Impact Your Contracts? Perhaps It’s Time To Review Your Agreements
April 2, 2020
It has been said that nobody really looks at the language of a contract until there is a problem.  Now there could be a problem.
Shopping center owners and their restaurant tenants are now studying the language of the leases.  Sellers and buyers of commercial property that are in escrow are now paying attention to the language in the estoppel certificates.  Many prudent business tenants purchased business interruption insurance.  Now the question is whether the insurance policy covers business interruption because of

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Arizona Surety Claims: Surety Bad Faith Revisited in Recent Decisions
May 23, 2016
Practice Area: 
Over the last twenty-six years, Arizona has been the epicenter of the national surety bad faith discussion.  In 1989, the Arizona Supreme Court issued probably the leading surety bad faith case in the county – Dodge v. Fid. And Dep. Co. of Md., 778 P.2d 1240, 161 Ariz. 344 (1989).   In Dodge, plaintiffs-homeowners contracted with a residential construction company to build a residence for them.  The contract required the contractor to obtain a performance bond, which the defendant-surety provided.  After the contractor defaulted under the contract, the plaintiffs

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Understanding Percentage Rent in Commercial Leases
October 16, 2015
Commercial leases for retail and restaurant tenants often require the tenant to pay percentage rent.  Percentage rent is that sum a tenant will pay in addition to base (minimum) rent as a percentage of a portion of the tenant’s gross sales.
A landlord will want the tenant to pay percentage rent to insure it enjoys a share of the tenant’s strong sales.  No doubt a tenant would prefer to minimize lease payments by not paying percentage rent, but for the most part it is the industry standard, and

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Small Business Real Estate Series, Part III: Personal Guarantees to Commercial Leases
October 6, 2015
Part II of the Small Business Real Estate Series focused on commercial lease negotiations. As indicated in the blog, commercial leases are typically extensive, including dozens of pages of terms with numerous exhibits, addenda, rules and regulations. One of the most important, yet least understood, attachments to a commercial lease is the personal guarantee.
A personal guarantee holds the business owner personally responsible for payment on a commercial loan or lease in the event of a default by the business. Prospective tenants

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Contractor Payment Pitfalls: No Right to Payment for Work Performed Outside License Scope
September 9, 2015
Contractors, owners and sureties issuing contractor license bonds in the State of Arizona should be aware of a new opinion recently issued by the Arizona Court of Appeals (Division One): Chavira v. Armor Designs of Delaware, Inc., 719 Ariz. Adv. Rep. 33. The opinion addresses the issue of whether a licensed contractor should be precluded from recovering monies due for work falling within the scope of the contractor’s license when the contractor likewise performed work falling outside the scope of the

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Business Litigation

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Do You Have An Exit Strategy From Your Business?
September 2, 2015
Are you among the large percentage of the population nearing retirement? Have you considered how your family will be cared for in the event you become disabled or seriously ill and are unable to manage your business? What will happen to your family and your business if you die at an early age? These are the types of questions many business owners fail to consider until it is too late.
Business succession planning refers to the practice of developing a plan with corresponding agreements and

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Understanding Radius Restrictions in Commercial Leases
August 20, 2015
Radius restrictions are common in commercial leases that include a percentage rent provision, under which a tenant pays a percentage of the revenue generated from its premises in addition to base rent.  Since a landlord does not want the percentage rent generated by the premises diluted by sales originating in one of the tenant’s future locations, a lease will often prohibit a tenant from operating a competing store within a certain radius measured from the location of the premises.  Radius restrictions are common in leases for properties that

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Small Business Real Estate Series, Part II: Commercial Lease Negotiations
June 4, 2015
Part I of the Small Business Real Estate Series focused on the due diligence a small business owner should conduct when evaluating commercial locations. Once you have decided on the location that best suits the needs of your business and budget, the next phase is to negotiate the commercial lease. Even if you, as Tenant, employ the assistance of a leasing agent, you are ultimately responsible for complying with the terms of the lease. It is important to ensure you are entering into a

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Small Business Real Estate Series – Part I: Commercial Leases
February 27, 2015
Each year, thousands of new entrepreneurs set out to make their dream of being a business owner a reality. Many will be based in their home until the business is large or profitable enough to support the expense of a commercial space. When that time comes, there are many things to consider for a smooth transition.
This is the first in a series of blogs dedicated to guiding a business out of the home office or garage, and into a leased commercial space. The

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Housing Bust Bad Loans May Still be an Issue for Lenders
June 11, 2014
For most, the Arizona residential mortgage foreclosure crisis has passed; however, legal issues that arose as a result are still being resolved by the courts.
In Steinberger v. McVey, No. 1 CA-SA 12-0087 (Ariz. Ct. App. Jan. 30, 2014), a decision by the Court of Appeals of Arizona addressed issues that continue to impact both lenders and borrowers, including challenges regarding the authority of parties seeking foreclosure.
In making the decision, the Court of Appeals considered three principal questions:
1.  Are there any circumstances

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