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.

December 24, 2015

Washington Court Rules that Light May Be Nuisance and Tree May Be Spite Structure

The Washington Court of Appeals recently ruled in a published opinion that a driveway light installed in compliance with the local code could nonetheless constitute a nuisance if certain facts are proven on remand.  The Court also ruled that a large planted tree could constitute a "spite structure" prohibited by state statute if certain facts are proven on remand.  Yes, even light and trees can be bad sometimes.      

An activity is a nuisance when it interferes unreasonably with a neighbor's use and enjoyment of his or her property.  No Washington case up to this point had decided that light can be a nuisance, but the Court ruled in this case that "a trier of fact could find that the driveway light, without the available adjustment of its shield, offends the senses so as to essentially interfere with the comfortable enjoyment of Haley's home."  The Court deemed it significant that no harm was identified resulting from an adjustment of the light shield at issue.  

A Washington statute provides a person with the right to obtain an injunction if a neighbor maliciously erects a structure intended to spite, injure, or annoy that person.  No Washington case up to this point had decided that one planted tree can be such a structure, but the Court ruled in this case that "a single tree artificially located and planted with spiteful intent may, depending on the circumstances, constitute a structure within the meaning of RCW 7.40.030." The Court based its ruling in part on a 1991 Washington case which held that a row of trees planted along a property line may constitute a fence prohibited by a restrictive covenant.                   

November 30, 2015

Court's Decision Compels Condominiums to Evaluate Validity of Leasing Restrictions

Condominiums created on or before July 1, 1990 are governed by the Washington Horizontal Property Regimes Act.  The Washington Condominium Act (WCA) governs condominiums created after July 1, 1990.  Under the WCA, a condominium declaration may be amended by the vote or agreement of owners to which at least 67 percent of the votes are allocated.  However, the WCA also requires the vote or agreement of a special supermajority (each unit particularly affected and the owners of units to which 90 percent of the votes are allocated) if an amendment changes "the uses to which any unit is restricted."  

The Washington Supreme Court recently decided in a unanimous published opinion that a WCA condominium's declaration amendment restricting the leasing of units was invalid because an insufficient number of owners (67 percent) approved it.  The Court first pointed out that leasing is identified as a use of a unit in the condominium's declaration.  It next noted that WCA condominiums must obtain special supermajority approval in order to amend their declarations to change the uses to which any unit is restricted. The Court concluded that this condominium's declaration required it to obtain special supermajority approval in order to amend its declaration to restrict leasing.  The amendment at issue was held to be invalid because such approval was not received. 

Many WCA condominiums' declarations identify leasing as a use of a unit.  Those condominiums' declaration amendments restricting leasing are invalid if they were not approved by a special supermajority.  Our office is here to help if your condominium association has questions about the validity of an existing declaration amendment that restricts leasing or about the necessary approval percentage for a new declaration amendment that restricts leasing.