Your HOA Maintains the Roof. Can It Sue Over a Roof It Doesn't Own?

In some communities with a homeowners' association, owners live with a slightly strange arrangement. They own their homes. But the association maintains the roof over each one, and the walls around it, and it is the association — not the owner — that decides when those things get repaired. Whether that is how a particular community works depends on its own governing documents. It is how the community in this case worked.

Most of the time this works out fine. It stops being fine when the roof was built badly.

At that point the problem is bigger than any one owner. The defect may run through four buildings. Fixing it takes one coordinated project, not eighteen separate ones. And the entity that actually manages the roofs turns out not to own them. So who is allowed to go to court about it?

In July 2026, a divided Arizona Supreme Court answered that question for a specific kind of construction claim, and the answer runs against a rule that had seemed settled: ownership is not always what decides who gets to sue.

Eighteen homes and a split in responsibility

The community was small — eighteen units in four residential buildings, plus common areas. The developer built it, created the homeowners' association to run it, and wrote the governing documents that define who does what.

Those documents set up the arrangement at the center of this case. The association received ownership of the common areas and the duty to maintain them. It also received control over the exteriors of the homes — the walls, the roofs — including a provision barring individual owners from so much as repainting their own exterior trim. But the owners, not the association, own those exteriors.

After the association discovered what it said were construction defects in the common areas and in some unit exteriors, it sued the developer, claiming the work had not been done in a workmanlike manner.

The trial court threw the case out without a trial. Its reasoning was straightforward: common areas are not residences, the association does not own the units, and having a duty to maintain something is not the same as having the legal rights of an owner. Whatever claim existed belonged to the individual homeowners.

The court of appeals disagreed. The Supreme Court took the case to settle it.

The promise that comes with a new home

Arizona recognizes something called the implied warranty of workmanship and habitability. It is a promise the law attaches to a newly built home even when nobody writes it into the contract: the work was done to accepted standards and the place is fit to live in. It covers hidden defects — the kind you could not have seen at the walkthrough.

Traditionally, that promise belongs to homebuyers. The original purchaser has it, and Arizona courts extended it to later purchasers too. But a homeowners' association is not a homebuyer. It did not sign a purchase contract, and here the governing documents contained no warranty of their own.

So the Court agreed with the developer on the first question: under the common law as courts had developed it, this association had no implied warranty claim at all.

That could have ended the case. It did not, because courts are not the only source of law. The legislature can change a rule the courts made — and the majority concluded it had.

What the statutes say an association may do

Arizona has a set of statutes governing construction-defect lawsuits brought by homeowners' associations. The majority read them together and found three things stacked on top of each other.

The first says an association "may file" an association dwelling action. The majority held that language grants permission to sue, not merely a schedule for suing.

The second defines that action as one involving a "construction defect." The third defines a construction defect to include a material deficiency caused by a failure to follow generally accepted workmanship standards in the community — which is, almost word for word, what the implied warranty has always been about.

Read as a chain, the majority concluded, the legislature authorized associations to bring what amounts to an implied warranty claim.

Then came the ownership question, which turned on a small piece of statutory grammar. The definition of a covered "dwelling" includes newly constructed residential units and property and improvements owned by the association or jointly by all its members. Does that ownership requirement attach to everything on the list, or only to the last part of it?

The majority held it attaches only to the last part. Common areas the association owns qualify because it owns them. Newly constructed residential units qualify whether or not the association owns them. The majority's reason was practical: if ownership were required across the board, the phrase about newly constructed residential units would do no work at all, because it would already be covered by the word "property."

For the claims in this case, the association's lack of ownership did not block the lawsuit.

The permission comes with conditions

This is not an open door, and the conditions are worth knowing because they protect people on both sides.

Before filing, an association must notify its members that it intends to sue, hold a meeting of the members and the board, obtain the board's authorization, and give the seller an opportunity to fix the alleged defects. The first three exist so members learn their association is heading into litigation in their name. The fourth exists so a builder gets a chance to repair the problem before being sued over it.

The Court noted the association here had satisfied all of them without dispute.

Two justices saw it differently

The decision was five to two, and the dissent's reading deserves to be stated fairly, because it is not a technicality.

The Chief Justice, joined by one other justice, would have held that these statutes are procedural — a set of conditions an association must clear before filing whatever claim it already has, not a new claim of its own. On that reading, "may file" tells an association when it may proceed, not that it now has something to bring.

The dissent also pointed out that associations were not without options before this ruling. They could sue in negligence for damage to property they own, sue on a contract or express warranty where one exists, or pursue implied warranty claims assigned to them by individual homeowners. Because those routes already existed, the dissent reasoned, there was no need to read the statutes as quietly rewriting the common law.

The majority's view controls. But the dissent maps the alternatives that remain part of the landscape.

What the Court did not decide

Nothing in this ruling says the defects are real.

The Court reversed the judgment for the developer and sent the case back for further proceedings. It did not decide that the construction was defective, that the developer is responsible, or what anything might be worth. It also declined to award the developer its attorney fees, noting it is not the prevailing party at this point. What the association won was the right to bring its case — not the case itself.

What does this decision teach us?

• Ownership is not always the answer to who may sue. For this category of construction claim, the majority held the legislature separated the right to sue from ownership of the damaged property.
• A legislature can change a rule the courts made. On this implied-warranty theory, the common law gave this association nothing. The statutes are what changed the outcome — which is why the whole fight was about statutory language.
• The right to sue comes packaged with obligations. Notice to members, a meeting, board authorization, and a chance for the builder to repair are all part of the same statutory scheme.
• Disagreement on the court does not leave the question open. The majority resolved who may sue. Two justices read the same statutes as purely procedural, and their opinion sets out the other theories associations have long used — but the majority's reading controls.
• Permission to proceed is not proof of anything. The case goes forward; whether the work was actually defective remains to be decided.