IN THE

SUPREME COURT OF THE STATE OF ARIZONA

 

JIE CAO, ET AL., 

Plaintiffs/Appellants, 

v.

PFP DORSEY INVESTMENTS, LLC, ET AL., 

Defendants/Appellees. 

 

No. CV-22-0228-PR

Filed March 22, 2024 

Appeal from the Superior Court in Maricopa County

The Honorable Daniel G. Martin, Judge

No. CV2019-055353 

AFFIRMED IN PART AND REMANDED

Opinion of the Court of Appeals, Division One

253 Ariz. 552 (App. 2022) 

VACATED

COUNSEL:

Eric M. Fraser (argued), John S. Bullock, Osborn Maledon, P.A., Phoenix, 

Attorneys for Jie Cao and Haining “Frazer” Xia

Charles E. Markle, Greenberg Traurig, LLP, Phoenix, Timothy J. Berg 

(argued), Brett C. Gilmore, Fennemore Craig, P.C., Phoenix, Attorneys for 

PFP Dorsey Investments, LLC and Dorsey Place Condominium Association

Shawna M. Woner, Stephanie K. Gintert, Woner Hoffmaster Peshek & 

Gintert, PC, Scottsdale; Matthew E. Price, Jenner & Block LLP, Washington, 

DC, Attorneys for PFP Dorsey Investments, LLC

Edith I. Rudder, Nicholas C. S. Nogami, Carpenter Hazlewood Delgado & 

Bolen, LLP, Tempe, Attorneys for Dorsey Place Condominium Association
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

2

Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at 

the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater 

Institute

Jonathan A. Dessaules, Ashley C. Hill, Dessaules Law Group, Phoenix, 

Attorneys for Amicus Curiae Arizona Homeowners

James T. Braselton, Vail C. Cloar, Dickinson Wright PLLC, Phoenix, 

Attorneys for Amici Curiae Papago Springs, LLC, and Mahdere Gebreyesus 

Desta and Gary and Allien Stoloff

Quinten T. Cupps, Vial Fotheringham, LLP, Mesa, Lynn M. Krupnik, 

Timothy J. Krupnik, Krupnik & Speas, LLC, Phoenix, Robert M. Diamond, 

Reed Smith LLP, McLean, VA, James C. Martin, Ted A. Hages, Reed Smith 

LLP, Pittsburgh, PA, Attorneys for Amicus Curiae Community 

Associations

Kathryn D. Valois, Pacific Legal Foundation, Palm Beach Gardens, FL, 

James M. Manley, Pacific Legal Foundation, Phoenix, Attorneys for Amicus 

Curiae Pacific Legal Foundation

Andrew T. Fox, Austin C. Yost, Coppersmith Brockelman PLC, Phoenix, 

Attorneys for Amici Curiae Eric Buckeye, Peter Sczupak, Rekha Tataria, 

Mukesh Tataria and Amy Wautier

Derek Debus, Phoenix, Attorneys for Amicus Curiae Cato Institute

_______________

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES

LOPEZ, BEENE, MONTGOMERY, and KING joined.

_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 Petitioners Jie Cao and Haining Xia (the “Xias”) are former 

condominium unit owners who object to the forced sale of their unit by 

their condominium association (the “Association”) following dissolution of 

the condominium. We hold that the Arizona Condominium Act, A.R.S. 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

3

§ 33-1201, et seq. (the “Condominium Act”), which authorized and 

governed the sale’s execution, does not violate the eminent domain 

provision of the Arizona Constitution as applied to the Xias. The 

Condominium Act was incorporated into the condominium declaration 

(the “Declaration”) to which the Xias agreed, and the Declaration also 

provided for partition of the property upon dissolution. However, we also 

hold that under these circumstances, the Condominium Act required the 

sale of all property, rather than individual units as occurred here.

BACKGROUND

¶2 In 2007, a developer completed construction of Dorsey Place 

Condominiums (“Dorsey Place”), a single building comprised of ninety-six 

units. The developer recorded the Declaration, which established Dorsey 

Place’s covenants, conditions, and restrictions. Article 2.1 of the Declaration

“submit[ted Dorsey Place] . . . to the provisions of the Condominium Act 

for the purpose of creating a condominium in accordance with the 

provisions of the Condominium Act.” The Declaration defined the 

Condominium Act as “A.R.S. § 33-1201, et seq., as amended from time to 

time.”

¶3 As pertinent here, A.R.S. § 33-1228 (2018)1 provided 

requirements and procedures for terminating a condominium. In 

particular, § 33-1228(C) provided “[a] termination agreement may provide 

that all the common elements and units of the condominium shall be sold 

following termination. If, pursuant to the agreement, any real estate in the 

condominium is to be sold following termination, the termination 

agreement shall set forth the minimum terms of the sale.”

¶4 Under the Declaration, unit owners acted through the 

Association. Article 2.7 of the Declaration provided that each unit owner

would have one vote in the Association for each unit owned. Article 6.1 of 

the Declaration provided:

1 The parties dispute which version of § 33-1228 applied to the Dorsey Place 

termination. The court of appeals held the version of § 33-1228 that became 

effective in 1986 applied. Cao v. PFP Dorsey Invs., LLC, 253 Ariz. 552, 556–58 

¶¶ 18–24 (App. 2022). For the reasons below, we disagree. Accordingly, all 

references to § 33-1228 refer to the version that became effective in 2018, 

unless otherwise noted.
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

4

The Association shall have such rights, powers and duties as 

are prescribed by the Condominium Act, other applicable 

laws and regulations and as are set forth in the Condominium 

Documents together with the [sic] such rights, powers and 

duties as may be reasonably necessary in order to effectuate 

the objectives and purposes of the Association as set forth in 

this Declaration and the Condominium Act.

¶5 In January 2018, the Xias purchased unit 106 at Dorsey Place. 

Pursuant to the Xias’ warranty deed and the Declaration, the Xias took 

ownership to the unit subject to the Declaration. In November 2018, PFP 

Dorsey purchased ninety units at Dorsey Place. Other individuals, 

including the Xias, owned the remaining six units.

¶6 In April 2019, the Association held a meeting to discuss

terminating the condominium. At the meeting, the Association presented 

unit owners with a termination agreement that provided for the sale of “all 

portions of and interest in [Dorsey Place] not already owned by PFP 

[Dorsey], to PFP [Dorsey], upon termination of the Condominium.” The 

termination agreement stated that PFP Dorsey would pay fair market value

for the purchased property.

¶7 The termination agreement stated PFP Dorsey had obtained 

an independent appraisal of the fair market value of the property to be 

purchased that would be made available to unit owners, and the appraisal 

would become final unless a unit owner disapproved. The agreement

explained that if a unit owner disapproved of PFP Dorsey’s appraisal, the 

disapproving unit owner could obtain an independent appraisal of their 

unit. If the unit owner’s appraisal differed from PFP Dorsey’s appraisal by 

five percent or less, then the unit owner’s appraisal would become final as 

to their unit. If the unit owner’s appraisal differed from PFP Dorsey’s by 

more than five percent, then the disapproving unit owner could either 

accept PFP Dorsey’s appraisal value or submit the matter to arbitration. 

The Xias did not obtain an independent appraisal.

¶8 PFP Dorsey was the only unit owner that signed the 

termination agreement. Article 13.4 of the Declaration provided, “the 

Condominium may be terminated only by the agreement of Unit Owners 

of Units to which at least ninety percent (90%) of the votes in the 

Association are allocated.” Because PFP Dorsey controlled 93.75% of the 

Association’s votes, the Association ratified the termination agreement. 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

5

Subsequently, the Association recorded a warranty deed transferring title 

of the Xias’ unit to PFP Dorsey. PFP Dorsey took possession of the Xias’

unit, changed the locks, and disposed of the Xias’ personal possessions.

¶9 The Xias filed a claim against the Association and PFP Dorsey 

alleging civil trespass, conversion, breach of fiduciary duty, unjust 

enrichment, and wrongful recording. Cao, 253 Ariz. at 555 ¶ 9. The Xias 

sought ejectment, imposition of a constructive trust, and to quiet title. Id. 

The Xias argued that the sale of their unit violated § 33-1228(C), and, 

alternatively, that § 33-1228 was unconstitutional because it authorized a 

taking of private property for private use. Id. The Association and PFP 

Dorsey filed separate motions to dismiss, arguing the Xias failed to state a 

claim for which relief could be granted because the sale complied with 

§ 33-1228. Id. ¶ 10. The superior court granted the Association and PFP 

Dorsey’s motions. Id. The Xias appealed this dismissal. Id. ¶ 11.

¶10 The court of appeals reversed the superior court’s order

dismissing the Xias’ claims. Id. at 560 ¶ 37. On appeal, the Xias argued that 

§ 33-1228 was unconstitutional because it authorized a taking of private 

property for private use, and that the Association and PFP Dorsey violated 

§ 33-1228(C) because it prohibited the forced sale of less than an entire 

condominium. Id. at 555 ¶ 13.

¶11 Initially, the court of appeals determined § 33-1228 was 

unconstitutional on its face. Id. ¶ 15. Nevertheless, the court of appeals 

held § 33-1228 was applicable to the Xias by consent because the 

Declaration incorporated the Condominium Act. Id. at 556 ¶ 17, 558 ¶ 24.

¶12 Having determined § 33-1228 applied to the Xias, the court of 

appeals went on to address which version of § 33-1228 applied. Id. 

at 556–58 ¶¶ 18–24. When the Xias purchased their unit, the 1986 version 

of § 33-1228 was in effect, but after the Xias purchased their unit, a 2018 

amendment to § 33-1228 went into effect. Id. at 556–57 ¶ 21. The 2018 

amendment changed subsection (G) of § 33-1228 to include relocation fees 

in unit owners’ respective interests and provide a process for unit owners 

to challenge the fair market value assessment of a condominium association 

in the event of a pending termination and sale of the condominium. Relying 

on Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), the court of 

appeals held the 2018 amendment to § 33-1228 could not apply to the Xias 

without separate consent. Id. at 557 ¶ 22. The court of appeals reasoned 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

6

that although the Declaration purported to incorporate the Condominium 

Act “as amended from time to time,” the 2018 amendments to § 33-1228

were unforeseen and substantial. Id. As such, the 1986 version of § 33-1228

applied to the Xias. Id. at 558 ¶ 24.

¶13 Additionally, the court of appeals held that the Association 

and PFP Dorsey complied with § 33-1228(C), even though the termination 

agreement provided for the sale of less than the entire condominium. Id. 

at 559 ¶ 31. The court reasoned that although § 33-1228(C) permitted the 

forced sale of an entire condominium, the statute also allowed the forced 

sale of less than an entire condominium. Id. at 558–59 ¶¶ 29–30.

¶14 The Xias petitioned this Court for review. We granted review 

on the following issues: (1) whether § 33-1228 authorized the taking of 

private property for private use in violation of article 2, section 17 of the 

Arizona Constitution, either on its face or as applied in this case; (2) whether 

§ 33-1228(C) required all of the common elements and units of a 

condominium to be part of a sale if any common elements or units of the

condominium are to be sold pursuant to a condominium termination 

agreement; (3) whether the terms of an unconstitutional statute are 

enforceable as to the contracting parties if a contract incorporates the statute

by reference; and (4) whether subsequent statutory amendments are 

incorporated into a condominium declaration if the condominium 

declaration incorporates the statute by reference. These are important 

issues of statewide concern. We have jurisdiction under article 6, section

5(3) of the Arizona Constitution.

DISCUSSION

¶15 We review the constitutionality and interpretation of statutes 

de novo. See, e.g., Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017); State v. 

Holle, 240 Ariz. 300, 302 ¶ 8 (2016). We also interpret questions of law, 

including contract interpretation, de novo. See, e.g., Powell v. Washburn, 211 

Ariz. 553, 555–56 ¶ 8 (2006).

¶16 This case presents interrelated issues involving eminent 

domain, contract, and statutory provisions concerning the division of 

common interests in property. The Xias assert that § 33-1228(C), which 

governed the sale of condominium units following termination, is 

unconstitutional under article 2, section 17 of the Arizona Constitution both 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

7

on its face and as applied to them. The Xias argue in the alternative that if 

we construe the statute to require the sale of all of the common elements 

and units, it would largely ameliorate the problem. We address the discrete 

challenges to the forced sale in turn.2

I. EMINENT DOMAIN

¶17 Article 2, section 17 provides in relevant part that “[p]rivate 

property shall not be taken for private use.” Ariz. Const. art. 2, § 17. This 

provision provides significantly greater protection against takings for 

private use than does the Fifth Amendment’s takings clause. Compare Kelo

v. City of New London, 545 U.S. 469, 483–90 (2005) (upholding the taking of a 

working-class neighborhood to facilitate amenities related to a private 

business), with Bailey v. Myers, 206 Ariz. 224, 227 ¶ 12 (App. 2003) (“Taking 

one person’s property for another person’s private use is plainly 

prohibited . . . .”).

¶18 In addition to prohibiting government-executed takings for 

private use, article 2, section 17 prohibits the legislature from authorizing 

private individuals to take property for private use, except for some 

enumerated exceptions not implicated here. Inspiration Consol. Copper Co. 

v. New Keystone Copper Co., 16 Ariz. 257, 260–62 (1914) (“In authorizing the 

taking of private property for private use, the legislative department of the 

government is therefore limited to the purposes named in the 

Constitution.”); see also Cedar Point Nursery v. Hassid, 594 U.S. 139, 149 (2021) 

(stating government action—for example, through a regulation—that 

“results in [the] physical appropriation of property” violates the federal 

Takings Clause); Horne v. Dep’t of Agric., 576 U.S. 350, 361 (2015) (holding a 

regulation violated the federal Takings Clause). The Xias contend that the 

Association could not have involuntarily sold their unit absent 

§ 33-1228(C), which therefore renders the statute unconstitutional on its 

face or as applied to them.

¶19 We have no cause to resolve the constitutionality of 

§ 33-1228(C) in other instances because the Association’s power to forcibly 

sell the Dorsey Place units in this case emanated not from that statute but 

2 As we conclude that § 33-1228(C) is not unconstitutional, as applied to the 

Xias, and thus not facially unconstitutional, we do not address the third 

question on which review was granted relating to whether an 

unconstitutional statute may be incorporated into a contract by reference.
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

8

from contract—specifically, the Declaration that all unit owners signed and 

to which their property interests were subject. “[P]arties are generally free 

to contract on whatever terms they choose.” Zambrano v. M & RC II LLC, 

254 Ariz. 53, 56 ¶ 1 (2022). Among the terms to which they generally may 

agree is a waiver of constitutional rights. See State ex rel. Polk v. Hancock, 237 

Ariz. 125, 128–29 (2015); CSA 13-101 Loop, LLC v. Loop 101, LLC, 236 Ariz. 

410, 411 ¶ 6 (2014).

¶20 Article 13.4 of the Declaration provided that the 

condominium may be terminated by the agreement of unit owners 

comprising at least ninety percent of the votes. No one disputes that 

occurred here. Although the Declaration did not otherwise expressly 

provide for the disposition of ownership interests following termination, 

Article 2.1 stated that the property was “submit[ted] . . . to the provisions 

of the Condominium Act for the purpose of creating a condominium in 

accordance with the provisions of the Condominium Act.” The Declaration 

referenced the Condominium Act no fewer than thirty-six times, and 

specific provisions were also repeatedly referenced. The Condominium 

Act’s presence was so ubiquitous that one could not even skim the 

Declaration without noting it. Hence, the Condominium Act’s applicability 

here is a consequence of a clear contractual agreement to incorporate the 

statute by reference that the parties to the Declaration were at liberty to 

make. See, e.g., Indus. Comm’n v. Ariz. Power Co., 37 Ariz. 425, 431 (1931).

¶21 The Condominium Act provided a statutory default process 

for condominium terminations and for disposing of ownership interests in 

the event of termination. § 33-1228. Under the Condominium Act, 

termination resulted in title to a unit being vested either in the Association 

if a sale occurred, or in all unit owners as tenants in common if a sale did 

not occur. § 33-1228(D)–(E). Thus, the termination of the condominium as 

a whole was what resulted in the transfer of title to a specific unit from the 

unit owner. See § 33-1228(E) (“While the tenancy in common exists, each 

unit owner and the unit owner’s successors in interest have an exclusive 

right to occupancy of the portion of the real estate that formerly constituted the 

unit owner’s unit.” (emphasis added)). The Xias signed up for this 

possibility by agreeing to the terms of the Declaration and buying a unit

subject to the Condominium Act.

¶22 Importantly, § 33-1228(J) provided that most of the statute’s 

provisions—including subsection (C), the locus of the Xias’ complaint—“do 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

9

not apply” if the declaration “contains provisions inconsistent with these 

subsections.” In other words, condominium owners were free to contract 

around most of the Condominium Act’s provisions. The Dorsey Place 

Declaration emphatically did not.3

¶23 For the foregoing reasons, because the Xias and other unit 

owners agreed to follow the Condominium Act, including § 33-1228(C)’s 

terms regarding a termination agreement, we do not address the 

constitutionality of the Condominium Act. In short, the Condominium Act 

did not effect a taking of the Xias’ property.

II. SALE OF THE ENTIRE CONDOMINIUM

¶24 The Xias argue that if the sale was permissible, § 33-1228(C) 

required that all of the common elements and units be sold, including the 

units belonging to PFP Dorsey. Here, the Association sold to PFP Dorsey 

only the six units it did not already own.

¶25 Section 33-1228(C) provided in full: “A termination 

agreement may provide that all the common elements and units of the 

condominium shall be sold following termination. If, pursuant to the 

agreement, any real estate in the condominium is to be sold following 

termination, the termination agreement shall set forth the minimum terms 

of the sale.”

¶26 We read statutes to effectuate the plain meaning of the terms 

to which the legislators agreed, in their broader statutory context. In re 

Riggins, No. CV-23-0123-CQ, 2024 WL 974058, at *2 ¶ 12 (Ariz. March 7, 

2024). If a provision is ambiguous, we may look to extrinsic sources, such 

as statutory history. Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 164 ¶ 20 (2017).

¶27 We begin with the foundational property law principle that,

ordinarily, one party may not sell another’s property. See, e.g., Buehman v. 

Bechtel, 57 Ariz. 363, 375 (1941) (“One of the principal elements of property 

is the right of alienation or disposition.” (citation omitted)); 26A C.J.S. Deeds

§ 277 (2024) (“A landowner cannot convey by deed a greater interest in 

property than she possesses.”).

3 The Xias have raised no contract defenses before us.
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

10

¶28 The source of the Association’s power to take and sell the 

Xias’ unit derived from the first sentence of § 33-1228(C), which stated that

“[a] termination agreement may provide that all the common elements and 

units of the condominium shall be sold following termination.” (Emphasis 

added). “All” means all—not less than all. Although “may” is permissive, 

Garcia v. Butler, 251 Ariz. 191, 194 ¶ 13 (2021); Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 112 (2012), “may” 

modifies “provide,” not “all.” Hence, the effect of the permissive “may” 

was to authorize conduct that otherwise could not lawfully occur. The 

words that follow, read as a whole, are what was authorized: selling all of 

the property.

¶29 Likewise, we apply the surplusage canon: we attempt to read 

statutes so that no language is rendered devoid of meaning. City of Tucson 

v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552–53 ¶¶ 31–34 (2005); Scalia 

& Garner, supra, 174 (providing that, under the surplusage canon, every 

word in a statute must be given effect, and “[n]one should be ignored”). 

The court of appeals’ reading of the first sentence of § 33-1228(C) could have 

been accomplished by authorizing that a termination agreement “may 

provide that common elements and units of the condominium shall be sold 

following termination,” omitting the words “all the.” Our interpretation 

gives meaning to those words.

¶30 Nor do we read the reference to the sale of “any real estate”

in the second sentence, in light of the first, to have independently 

authorized the sale of less than the entire property. The second sentence’s 

reference to the sale of “any real estate” accounted for two circumstances.

The first circumstance was where a termination agreement provided for the 

sale of an entire condominium over a unit owner’s objection. As discussed, 

a condominium association derived its power to do so from the first 

sentence of § 33-1228(C). The second circumstance occurred where a 

termination agreement provided for the sale of an entire condominium or 

only part of a condominium with the consent of all the unit owners whose 

property was to be sold. A condominium association derived its power to 

effect a sale under this circumstance not from the first sentence of 

§ 33-1228(C), but from contract law. Thus, the second sentence of 

§ 33-1228(C) did not grant condominium associations the additional power 

to sell less than all of a condominium over a unit owner’s objection.
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Opinion of the Court

11

¶31 Again, applying the surplusage canon, we note the term “all” 

means “the whole amount, quantity, or extent of; as much as possible; every 

member or individual component of.” All, Meriam-Webster available at 

https://www.merriam-webster.com/dictionary/all#dictionary-entry-1 

(last visited Mar. 13, 2024). The term “any” means “one, some, or all 

indiscriminately of whatever quantity.” Any, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/any (last visited Mar. 13, 

2024). Thus, the term “all” encompasses “any.” By interpreting 

§ 33-1228(C) to have required the sale of an entire condominium if any 

portion was to be sold over a unit owner’s objection, we give meaning to 

both terms.

¶32 Other subsections of § 33-1228 support our interpretation. In 

particular, subsections (D) and (E) provided two scenarios: termination 

with and termination without sale of the property. Subsection (D) 

authorized a condominium association to contract for the sale of the 

condominium on termination, but only if a supermajority of unit owners 

agreed to the sale. § 33-1228(D). “If any real estate in the condominium is 

to be sold following termination, title to that real estate on termination vests 

in the association as trustee for the holders of all interest in the units.” Id. 

(emphasis added). If the condominium association was selling less than the 

entire condominium, there would be no reason to require a supermajority 

of unit owners to agree to the sale or for the condominium association to 

take title to the property and act as trustee for all unit owners rather than 

only for the owners affected by a partial sale. The Xias also correctly point 

out that the language in subsection (D) that established the Association as 

trustee for the individual unit owners was consistent with a requirement 

requiring sale of all property. In selling the entire condominium instead of 

specific units, the Association as trustee would have a greater incentive to 

maximize the sale price for the entire property because all unit owners 

would be equally affected by the sale. See, e.g., Forest Guardians v. Wells, 201 

Ariz. 255, 262 ¶ 23 (2001); 76 Am. Jur. 2d Trusts § 526 (2023) (“[T]he trustee 

should secure competitive bidding and surround the sale with such other 

factors as will tend to cause the property to sell to the greatest advantage.”).

¶33 Subsection (E) provided, “[i]f the real estate constituting the 

condominium is not to be sold following termination, title to all the real 

estate in the condominium vests in the unit owners on termination as 

tenants in common in proportion to their respective interests.” § 33-1228(E)

(emphasis added). If PFP Dorsey is correct that subsection (C) permitted a 
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Opinion of the Court

12

sale of less than the whole condominium on termination, and subsection 

(D) required an association to only hold title for the parts to be sold, then

“all the real estate in the condominium” could not be vested in the unit 

owners as tenants in common, as required by subsection (E). Subsections 

(D) and (E) are only given full effect if subsection (C) is interpreted as 

having solely authorized a sale of the entire condominium upon 

termination.

¶34 Finally, this interpretation is supported by the Arizona 

legislature’s modifications to the Uniform Condominium Act, on which 

§ 33-1228 is based; the Uniform Law Commission’s (the “ULC”) 

commentary to the Uniform Condominium Act; and the ULC’s recent 

amendment and comment to the Uniform Common Interest Ownership 

Act, which replaced the Uniform Condominium Act. “[W]hen a statute is 

based on a uniform act, we assume that the legislature intended to adopt 

the construction placed on the act by its drafters. Commentary to such a 

uniform act is highly persuasive unless erroneous or contrary to the settled 

policy of Arizona.” UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 332 

¶ 25 (2001) (cleaned up).

¶35 The Condominium Act is a modified version of the Uniform 

Condominium Act. See 1985 Ariz. Sess. Laws, ch. 192, § 3 (1st Reg. Sess.). 

At the time the legislature adopted the Condominium Act in 1985, § 2-118

of the Uniform Condominium Act provided:

(c) In the case of a condominium containing only units having 

horizontal boundaries described in the declaration, a 

termination agreement may provide that all the common 

elements and units of the condominium shall be sold 

following termination. If, pursuant to the agreement, any real 

estate in the condominium is to be sold following termination, 

the termination agreement must set forth the minimum terms 

of the sale.

(d) In the case of a condominium containing any units not 

having horizontal boundaries described in the declaration, a 

termination agreement may provide for sale of the common 

elements, but may not require that the units be sold following 

termination, unless the declaration as originally recorded 
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Opinion of the Court

13

provided otherwise or unless all the unit owners consent to 

the sale.

Unif. Condo. Act § 2-118(c)–(d) (Unif. L. Comm’n 1980).

¶36 In a comment, the ULC explained these sections dealt “with 

the question of when all the real estate in the condominium . . . may be sold 

without unanimous consent of all the unit owners.” Id. cmt. 5 (emphasis 

added). The answer under the Uniform Condominium Act was “yes” when 

the condominium had horizontal boundaries and the termination 

agreement provided for a sale.

¶37 Arizona rejected different treatment for condominiums with 

horizontal boundaries and those without, and instead extended the 

Uniform Condominium Act’s forced-sale power to all types of 

condominiums. In doing so, the legislature did not change the nature of 

the power, which was to sell the entire condominium without the consent 

of all unit owners if the termination agreement provided for a sale.

¶38 In 1984, the ULC combined the Uniform Condominium Act 

with other model legislation, to create the Uniform Common Interest 

Ownership Act. The 1984 Uniform Common Interest Ownership Act 

included § 2-118(c) & (d) from the Uniform Condominium Act.

¶39 In 2021, the ULC amended the Uniform Common Interest 

Ownership Act to combine subsections (c) and (d). Unif. Common Int. 

Ownership Act § 2-118(c) (Unif. L. Comm’n 2021). In combining the 

subsections, the ULC mostly retained the language that applied to 

condominiums with horizontal boundaries, except it provided that a 

termination agreement “may provide for the sale of some or all of the 

common elements and units.” Id. (emphasis added). The comment to the 

amendment characterizes the change as “substantive” and states that the 

new language, unlike the prior version, “allows for the sale of some but not 

all common elements and units.” Id. cmt. 6. The amendment and comment 

demonstrate that the Uniform Law Commission understood the prior 

language, which Arizona substantially adopted and applied to all 

condominiums, permitted only the sale of an entire condominium over a 

unit owner’s objection. The amended language has not yet been adopted 

in Arizona, despite the legislature recently amending § 33-1228. 

Regardless, the Uniform Law Commission’s understanding of § 2-118(c)’s 
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Opinion of the Court

14

operative language, which § 33-1228(C) adopted, is consistent with our 

interpretation.

¶40 For all these reasons, we construe § 33-1228(C) as having 

authorized only a sale of all condominium property if the termination 

agreement provided for a sale. Thus, the forced sale of the Xias’ unit alone 

rather than as part of a sale of all common elements and units of the 

condominium was impermissible under § 33-1228(C).

III. WHICH STATUTORY VERSION APPLIED

¶41 The Xias argue that if the Declaration intended the reference 

to § 33-1228 as a contractual term, as we find here, subsequent amendments 

to the statute apply only if they fall within unit owners’ reasonable 

expectations. The Xias do not argue that the termination and sale here were 

governed by amended statutory terms falling outside their reasonable 

expectations. Instead, they raise the point as illustrating the difficulties 

with deeming the statute a contractual term.

¶42 Ordinarily, when a contract incorporates a statute by 

reference, it imports only the statutory language in effect at the time of the 

contract, but the parties are free to agree to incorporate future changes. 11 

Williston on Contracts § 30:23 (Richard A. Lord ed., 4th ed. 2022) (“[C]hanges 

in the law subsequent to the execution of a contract are not deemed to 

become part of [the] agreement unless its language clearly indicates such to 

have been [the] intention of [the] parties.”); Energy Rsrvs. Grp., Inc. v. Kan. 

Power and Light Co., 459 U.S. 400, 416 (1983) (suggesting that where a term 

incorporates present and future state and federal law, parties are deemed 

to agree to contract alteration by state price regulation and no federal 

constitutional Contract Clause violation occurs).

¶43 Here, the parties expressly incorporated into the Declaration

the Condominium Act “as amended from time to time.” Nonetheless, the 

court of appeals applied the pre-amended version of the Condominium 

Act, holding that incorporating the statutory amendments was 

impermissible under this Court’s decision in Kalway. See Cao, 253 Ariz. 

at 558 ¶ 24.

¶44 In Kalway, we invalidated certain amendments to covenants, 

conditions, and restrictions adopted pursuant to a provision that allowed 

amendments by majority vote of homeowners, holding that a homeowners’ 
CAO, ET AL. V. PFP DORSEY INVESTMENTS, LLC, ET AL.

Opinion of the Court

15

association “cannot create new affirmative obligations where the original 

declaration did not provide notice to the homeowners that they might be 

subject to such obligations.” 252 Ariz. at 538 ¶ 14. We concluded that 

“allowing substantial, unforeseen, and unlimited amendments would alter 

the nature of the covenants to which the homeowners originally agreed.” 

Id. ¶ 15.

¶45 Had PFP Dorsey exercised its power to amend the 

Declaration, Kalway may have been applicable. But the Declaration is 

unamended. Rather, the statutes that are expressly incorporated into the 

Declaration by reference were amended, and that possibility of statutory 

amendment was expressly anticipated. Such amendments do not implicate 

the concerns of self-dealing that apply when parties to a contract attempt to 

alter contract terms to the detriment of other parties; and no claim was 

raised here that the statutory amendments impaired contractual obligations 

in violation of article 2, section 25 of the Arizona Constitution. Hence, the 

2018 version of § 33-1228, which was in effect when the condominium was 

terminated, applied.

ATTORNEY FEES

¶46 The Xias seek attorney fees on a variety of bases. Article 13.15 

of the Declaration provides for attorney fees if a unit owner who “employs 

an attorney . . . to enforce compliance with or recover damages for any 

violation or noncompliance with the Condominium Documents” prevails 

in the action. Likewise, A.R.S. § 12-341.01 authorizes courts to award 

attorney fees for actions arising out of contract.

¶47 Under these provisions, we award the Xias reasonable 

attorney fees for amounts expended to enforce the Declaration. However, 

as the eminent domain challenge was unsuccessful, the Xias may not 

recover attorney fees attributable to those claims.

DISPOSITION

¶48 We vacate the court of appeals’ decision. We affirm the trial 

court except as to the issues encompassed in Part II of this Opinion, and 

remand to that court for further proceedings consistent with this Opinion.