April 8, 2016

Washington Court of Appeals Resolves Road Maintenance Agreement Dispute

The Washington Court of Appeals ruled in a published opinion last month that a road maintenance agreement did not create a homeowners' association and that a majority of lot owners lacked the authority to amend that agreement to adopt governing procedures. 

According to the statutory definition of "homeowners association": (1) there must be a corporation, unincorporated association, or other legal entity, (2) each member of the entity must be an owner of residential real property within the entity's jurisdiction as described in its governing documents, and (3) members must be obligated to pay real property taxes, insurance premiums, maintenance costs, or for improvement of real property that the member does not own. The Court ruled that a road maintenance agreement did not create a corporation, unincorporated association, or other legal entity.  As a result, a homeowners association was not formed.

The Court also considered whether the road maintenance agreement can be amended by majority vote. It decided that all lot owners must agree to any amendment because the agreement does not authorize amendments by any lesser standard.  The amendments describing governing procedures were therefore invalid because they were based on a mere majority.

March 9, 2016

Court Reverses Antiharassment Order Due to Neighbor's Easement Claim

Christopher Geiger and Marcellus and Lisa Buchheit own adjoining parcels of property on the north side of Lake Stevens.  Mr. Geiger owns and lives on lot 1, the upland parcel. The Buchheits own lot 2, which is located on the waterfront south of Mr. Geiger's parcel.  Lot 2 has a dock, boat ramp, and bulkhead, and the Buchheits plan to construct a house on it in the future.

Mr. Geiger began to use lot 2 without the Buchheits' permission.  When they accused him of trespassing, he claimed to have an easement over lot 2.  The Buchheits then sought and were granted an antiharassment order of protection that directed Mr. Geiger to stay off lot 2.  Mr. Geiger then appealed that order, arguing that the antiharassment statute may not be used to resolve disputes involving real property to which the other party has a claim.  The Washington Court of Appeals agreed, ruling that a recorded document submitted in support of the appeal gave rise to a "cognizable" claim to an easement over lot 2.  The Court decided that in this context a "cognizable claim" is one upon which relief can be granted if it possible that facts could be established that would support relief (a low standard).

The Court points out in its published opinion that the easement at issue is "carelessly drafted". The Court notes that the easement granted for the benefit of lot 1 is access over a strip of lot 1.  The commissioner who presided over the anitharassment petition was not convinced that Mr. Geiger had a valid easement over lot 2. In his words, the recorded document "is contradictory, it is internally inconsistent, and I cannot interpret it in this forum and in this context one way or the other."  This is an unfortunate example of why it is a good idea to retain the services of an attorney when it is time to draft a document that affects legal rights.  However, with the help of able legal counsel, Mr. Geiger was still able to advance a legal argument based on scrivener's error and reformation to support a claim to an easement over lot 2 under less than ideal circumstances.

January 27, 2016

Hello from the Law Office

I take pride in providing my community association clients with quality legal services.  However, I can't help associations that don't seek help. Some association boards seem reluctant to incur legal expenses of any kind unless a lawsuit is received or threatened.  This is penny wise and pound foolish.  When questions arise regarding how to amend, interpret, or enforce the association's governing documents, it is almost always advisable for the board to ask the association's attorney if the majority's desired course of action raises any legal issues. State law and the association's governing documents are filled with duties and restrictions that many boards (and owners) only learn about when they consult an attorney for the first time.  Boards need an experienced guide to navigate that legal minefield, and only attorneys have the necessary expertise to serve in that role.

The perceived high cost of legal services is often cited as the major impediment to obtaining them.  However, this ignores the reality that clients always have the ability to limit the amount of time spent by attorneys on any given matter. If a board is concerned that involving the association's attorney will inevitably lead to a large bill, then it should impose fee caps and look for a more efficient attorney, not forgo legal advice entirely.  Money spent ensuring that the association follows the law and its governing documents is money well spent.

Finally, a few words about time.  When association boards do seek legal guidance, they often contact their attorneys only a short time before the proposed actions or meetings. This prevents those attorneys from giving those matters the considered attention that they deserve and compels them to instead provide the best responses possible under the circumstances.  Association boards that provide their attorneys with a longer period of time to evaluate their situations will almost always receive superior legal services as a result.