The main point here is to decide whether you can intervene as a plaintiff in someone else’s lawsuit if you have the ability to file your own, separate suit instead.

Plaintiff, a homeowners’ association, sued Defendants in 2014 for alleged violation of the CC&Rs. In 2017 the association’s Board decided to settle the case without requiring full compliance with those CC&Rs. To try to block that the Intervenors — individual members of the association who wish to require full compliance — moved to intervene and also filed a separate suit against Defendants. The trial court denied the motion as untimely and, since Intervenors had filed their own lawsuit, unnecessary. And so the case was settled and dismissed. Intervenors appealed.

The Court of Appeals reverses.

As to timeliness, time is measured “not from the inception of the case, but from when the movant has notice that its interests are no longer being adequately represented.” Rule 24 does not allow intervention as of right until then. Intervenors filed their motion three years after the case began but only five days after the Board voted to settle it, at which time it no longer adequately represented Intervenors.

As to necessity, the rule allows intervention if, among other things, the existing action “may as a practical matter impair or impede” the intervenors’ ability to protect their interests. Arizona hasn’t addressed how the ability to file a separate action affects that. So the court looks to federal precedent, where there is a split of authority.  Because the rule says “may” and should be liberally construed the court adopts the broad approach: intervention is allowed if impairment of a substantial legal interest is “possible” without it. “This burden is minimal.”

The court finds that denying the motion could affect Intervenor’s interests, if only by denying them a say in the settlement. It vacates the judgment and remands for further proceedings.

(Opinion: Heritage Village v. Weinberg)