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Kibbey Decision,” Established the Prin- Territory from 1905 to Ciple That “Water Belongs to the Land” and 1909

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Kibbey Decision,” Established the Prin- Territory from 1905 to Ciple That “Water Belongs to the Land” and 1909 annual Franchise Seminar in February. Christina also spoke Arizona court stops HOAs from abusive practice NEWSLETTER at the A.B.A. Forum on Franchising’s Annual Forum held in SPRING 2012 personal Maryland in October 2011 on “The Perils of Third Parties In a recent case handled by Gust Rosenfeld, the Arizona Court not supportable on any legitimate ground. Its arguments are spe- Selling or Servicing Your Brand: Broker, Area Representative of Appeals reminded Home Owners Associations (HOAs) that cious, legally and logically unsound, and are so contrived as to be and Area Developer Programs.” there are limits to their powers. Until little more than sophistry.” Sarah C. Smith is a new member of the Maricopa County recently, HOAs would foreclose their lien The court held that the HOA’s lawyers Bar Association, Board of Directors. securing relatively small amounts, then had a duty to inform the court commis- Timothy A. Stratton was recently appointed to serve on argue that the foreclosure extinguished sioner handling the HOA default judgment NOTES the City of Scottsdale Board of Adjustments. The Board of JUDG E KIBBEY VITAL the first deed of trust securing the home- hearing about the controlling statute, even Kent E. Cammack, Christopher M. McNichol, Sean P. Adjustments hears and decides zoning and code variances. owner’s typically much larger home loan. if the statute was adverse to their position. O’Brien and Madeleine C. Wanslee hosted the Creditors’ Richard H. Whitney has been honored, along with Bert Arizona’s statutes are clear on lien The court of appeals found the actions of TO TERRITORY, STATE Rights Seminar, “What’s Hot in 2012” in January. Getz and Newton (Betty) Rosenzweig, as founders of the status: an HOA lien holds super priority the HOA’s lawyers offensive, joining the Tom Chauncey II and Christopher M. McNichol were Arizona Community Foundation (ACF). In 1978, Dick headed status except against certain liens includ- lower court in referring the matter to the Founding Member’s Ties to Centennial featured in Commercial Executive Magazine as “Leaders in Real the study committee formed by five large banks to explore start- ing “A recorded first mortgage on the state bar for disciplinary consideration. E s t at e L aw.” ing the organization, and, as a young lawyer, performed the legal unit … or a recorded first deed of trust on This case should put an end to bullying James T. Giel presented on “Elections Dos and Don’ts” to work to establish it. He went on to be the Chair for five years, the unit,” A.R.S. § 33-1807(B), (empha- tactics of HOAs, at least in this particular Trailblazing attorney. at the age of 71, leaving behind a firm foot- school district officials at an elections seminar in Phoenix. following Mr. Getz in that role. ACF now consists of more than sis added). Despite such clear language, type of situation. The case also reminds Sage jurist. Territorial print in Arizona’s history. Martin T. Jones spoke at the National Conference of the 500 component funds with total assets in excess of $500 million. HOAs had continued to push the limits lawyers and clients that they have a duty to governor. Joseph Henry Environmental Information Association on March 24 in San on their power. play by the rules of the court or else face Kibbey was all of these Diego on “Legal Issues: Hydraulic Fracturing.” Marty presented Super Lawyers THE ‘KIBBEY’ DECISION: The Arizona Court of Appeals ruled the consequences. and more. We are most locally to the Maricopa County Association of Paralegals in We are pleased to announce that ten of our lawyers have against the HOA in Cypress on Sunland proud of his contributions LANDMARK CASE ON March on “Renewable Energy vs. Fossil Fuels.” been selected for inclusion on the 2012 Southwest Super Lawyers Homeowners Ass’n v. Orlandini because it to the history of early WATER RIGHTS James W. Kaucher was selected for inclusion in the 2012 list. Each year, no more than 5 percent of the lawyers in found that a fraud was perpetrated on the lower court by the HOA Scott A. Malm | 602.257.7481 | [email protected] Arizona and of his service edition of The Best Lawyers in America® in the practice area of Arizona and New Mexico receive this honor. Those selected, by through its lawyers. The court stated, “The HOA’s interpretations Scott practices in the area of real estate litigation and commercial to his private practice The Wormser case involved a dispute in Professional Malpractice Law. practice area, are: Appellate: Charles W. Wirken. Bankruptcy of the statute and the covenants, conditions and restrictions are disputes. clients in his role as a which the Salt River Valley Canal Company Jennifer N. MacLennan presented at The Arizona School & Creditor/Debtor Rights: Sean P. O’Brien and Madeleine C. founding partner of was accused of considering water from Boards Association’s Spring Legal Conference in March on Wanslee. Business Litigation: Richard A. Segal. Estate Planning Gust Rosenfeld. the Salt River as corporate property and “School Board’s Role in Hiring.” & Probate: Richard H. Whitney. Insurance Coverage: Peter Kibbey served as delivering it in times of drought to custom- Andrew J. McGuire presented on development impact fee Collins, Jr. Real Estate: Timothy W. Barton; Gerald L. Jacobs; Phoenix Office Tucson Office This newsletter is published twice a year by the law firm of Gust Rosenfeld P.L.C. as a service to our clients and friends. It is intended to provide general Associate Justice of ers with ownership interest in the com- topics in October 2011, before the following groups: Growth Scott A. Malm; and Christopher M. McNichol. One E. Washington St., Ste. 1600 One S. Church Ave., Ste. 1900 information only, not advice on specific legal questions. Portions may be re- the Arizona Territorial pany—in preference to customers who had & Infrastructure Consortium; Government Finance Officers of In addition, associate Mingyi Kang has been selected to Phoenix, Arizona 85004-2553 Tucson, Arizona 85701-1627 produced with attribution. For change of address, additional copies, or a com- Supreme Court from historically used the water. Arizona Budget Forum; and the Urban Land Institute Arizona. Southwest Rising Stars as one of the top up-and-coming real Telephone: 602.257.7422 Telephone: 520.628.7070 plimentary subscription, contact our receptionist. We invite your comments. 1889 to 1893 and as The ruling, which became known as the Christina M. Noyes and John L. Hay hosted our firm’s estate attorneys in Arizona and New Mexico for 2012. Facsimile: 602.254.4878 Facsimile: 520.624.3849 SPRING 2012, ISSUE NO. 61 © 2012 Gust Rosenfeld P.L.C. www.gustlaw.com Governor of the Arizona “Kibbey Decision,” established the prin- Territory from 1905 to ciple that “water belongs to the land” and 1909. His legal career is could not be used as “floating” property to prsrtT S D most remembered for his be divided by decision of the canal compa- Changes To Notarizing Documents U.S. POstage efforts in the area of water ny. Water rights were thus linked to parcels paiD law. of land and not to the owner of land. As a At the behest of the Arizona Secretary of State, last year the Arizona Legislature added Phoenix, AZ Although he had been result of the decision, the role of the canal some new requirements to the laws regulating notaries public. One new provision of Permit No. 2659 a governor, he preferred company became that of a delivery agent: particular significance deals with the integration of the notary certificate with the main to be known as Judge Arizona Territorial Governor and Gust Rosenfeld founding member water was allocated to the various tracts document. Joseph Henry Kibbey. of land based upon the principle of prior one e. washington st., suite 1600 Kibbey. His decision Now, a separate notarial certificate attached to a document must contain a description phoenix, arizona 85004-2553 in the case of Wormser appropriation. of the document. This description should include, at a minimum, the title or type of the et al v. Salt River Canal confirmation of the second term until The decision was not appealed and document, the document date, the number of pages of the document, and the names of return service requested Company, Case No. 708 (1892), set an after Roosevelt left office, and succeeding the canal companies instead attempted to any additional document signers other than the person whose signature was notarized. important precedent in the territory that President William Taft appointed ignore the Kibbey Decision. It was later While this requirement may be designed to address the perceived misuse of free- continues to the present. Richard Sloan instead. Kibbey stepped upheld by the Arizona Territorial Supreme standing notary pages, it also may create practical issues in creating and organizing President Theodore Roosevelt down as governor on May 1, 1909. Court and became the basis for a decision complete documents, particularly ones with multiple signers at different locations. appointed Judge Kibbey Governor of the Judge Kibbey returned to private legal which settled water rights in the Salt River Arizona Territory on February 27, 1905, practice and served as counsel for the Salt Valley in anticipation of the completion of Christopher M. McNichol | 602.257.7496 renominating him for a second term on River Valley Water Users’ Association, part Roosevelt Dam. [email protected] December 16, 1908. Mining interests of today’s Salt River Project (SRP). Judge Chris practices in the area of real estate transactions and litigation. and other political opponents delayed Kibbey died in Phoenix on June 14, 1924, SEE KIBBEY ON PAGE 2 AmericAns with DisAbilities Act - PAge 3 • etymology corner - PAge 4 PAGE 5 SPRING 2012 NEWSLETTER Making A house A Dwelling - PAge 4 • PERSONAl notes - PAge 5 • hoAs - PAGE 6 Gust Rosenfeld: A LEGACY OF EXPERTISE lived in (by anyone) for it to be considered a dwelling under this Growing to Meet KIBBEY 20 YEARS LATER: Do you have to dwell FROM PAGE 1 IN WATER RIGHTS, PUBLIC statute.
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