January 14, 2020

WA Courts: Members of an HOA Must Be Present in Person to Vote on Amendments

The Washington Court of Appeals recently held in an unpublished opinion that a requirement in a homeowners association's bylaws that owners be "present" in order to vote on amendments to that document means that they must be present in person.  An owner argued that owners are also present if they vote by proxy, but the trial and appellate courts disagreed.  The appellate court noted that the word "present" in the bylaws must be given its usual meaning of "being in one place and not elsewhere: being in view or at hand."

This opinion demonstrates that the language in community associations' governing documents can sometimes be subject to different interpretations, which can lead to disputes and litigation.  Attorneys with experience in this area can help associations ensure that the contents of their governing documents are consistent with their desired polices and current practices.           

December 19, 2019

Washington Courts Deny Attorney Fee Requests in Lawsuit Over Views and Trees

Two property owners sued their neighbor for interference with a view easement and to enforce the height restrictions associated with that easement.  Their neighbor filed a counterclaim against them for timber trespass because they cut down a cherry tree on her property that they believed was violating the view easement.  The trial court ruled in favor of the two property owners regarding the view easement's height restrictions, but it also ruled that the cherry tree was exempt from the view easement and that the two property owners' willful removal of that tree made them liable to their neighbor for treble damages under the timber trespass statute.  The court denied both parties' requests for attorney fees because neither was the prevailing party in the lawsuit.  The neighbor appealed the denial of her attorney fee request, and the appellate court affirmed that denial.

RCW 4.84.250 through .290 authorize a trial court to award attorney fees and costs to the prevailing party in damage actions where the party seeking relief requests $10,000 or less.  Under RCW 4.84.260, the plaintiff is the prevailing party when their recovery, excluding costs, is as much or more than the amount they offered to accept in settlement.  This encourages out-of-court settlements, penalizes parties who unjustifiably bring or resist small claims, and enables parties to pursue meritorious small claims without seeing the award swallowed up by the expense of paying an attorney.

The two property owners were willing to pay the amount of money that their neighbor demanded for timber trespass, but their neighbor was unwilling to accept that offer unless they would also resolve the remaining non-monetary issues concerning height restrictions in her favor.  The two property owners rejected that counteroffer, and the court concluded that it would contradict the purpose of RCW 4.84.260 for their neighbor to obtain attorney fees and costs where an agreement could have been reached absent her refusal to compromise on an issue on which she ultimately lost.                  

November 30, 2019

Washington Court Upholds Process Service of Owner by Publication

In a recent unpublished opinion, the Washington Court of Appeals decided that a condominium association was entitled to serve an owner with a lawsuit by publication.  This decision was based on its conclusion that the association exercised reasonable diligence to personally serve the owner before resorting to service by publication as required by statute. This diligence included attempting to serve the owner on five separate occasions within a month, conducting a three-hour stakeout of the owner's residence, and searching the county's property and tax records for additional addresses for the owner.