July 12, 2016

Receivers to the Rescue?

The Washington Court of Appeals issued a published opinion last month pertaining to the Washington Receivership Statute (RCW 7.60).  The Court noted that "the legislature intended the Receivership Statute to benefit creditors having interests in property administered by the courts."  Receivers may thus be appointed by courts upon the commencement of foreclosure actions in order to lease properties.  The Washington Condominium Act (RCW 64.34.364(10)) describes such receiverships in the following manner:

"From the time of commencement of an action by the association to foreclose a lien for nonpayment of delinquent assessments against a unit that is not occupied by the owner thereof, the association shall be entitled to the appointment of a receiver to collect from the lessee thereof the rent for the unit as and when due. If the rental is not paid, the receiver may obtain possession of the unit, refurbish it for rental up to a reasonable standard for rental units in this type of condominium, rent the unit or permit its rental to others, and apply the rents first to the cost of the receivership and attorneys' fees thereof, then to the cost of refurbishing the unit, then to applicable charges, then to costs, fees, and charges of the foreclosure action, and then to the payment of the delinquent assessments. Only a receiver may take possession and collect rents under this subsection, and a receiver shall not be appointed less than ninety days after the delinquency. The exercise by the association of the foregoing rights shall not affect the priority of preexisting liens on the unit."

My office is available to assist your association if it wants to appoint a receiver to lease a delinquent property during a foreclosure action.    

June 30, 2016

Proud to Be a Washington Community Association Attorney!

32 of the 55 framers of the Constitution were attorneys.  Jokes aside, the legal profession has long been a profession of leadership.  As WSBA governor-at-large Sean Davis recently noted in an excellent article in NWLawyer: "We are regularly called upon when circumstances are at their worst and when stakes are highest: charged with guiding and informing decisions, often between two or more undesirable outcomes. Our willingness to speak up, remain silent, or provide influence through other means is a form of leadership: good, bad, or otherwise .... [T]he response we provide tends to carry significant weight with the hearer."  I'm proud to be a member of the legal profession.

Washington's Rule of Professional Conduct 2.1 ("Advisor") authorizes attorneys to "exercise independent professional judgment" and to "refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."  Mr. Davis pointed out in his article that this ability to guide individuals in an evaluation of considerations beyond the law "is a unique position that our profession formally holds in society."  I enjoy providing Washington condominium and homeowners associations with that kind of comprehensive legal advice. 

Have a safe, restful, and appreciative Independence Day!

May 31, 2016

Neighbors Tangle in Court Over Severed Tree Roots

The roots from two large trees growing on one property encroached onto a neighboring property.  The neighboring owner removed the roots, which damaged the trees and led to a lawsuit.  The trial court dismissed the lawsuit, and the Court of Appeals affirmed that dismissal in a published opinion last month.  The Court held that the neighboring owner had the right to remove the portions of the roots that encroached onto his property, and it further held that he did not owe the trees' owner a duty of due care to prevent damage to the trees.

The Court noted during its opinion that tree branches that extend over the land of another are "technical nuisances [that] the person over whose land they extend may cut ... off."  It also mentioned an unusual case in which one set of neighbors sued another set of neighbors for building a condominium that blocked their western view.  The Court decided in that case that the plaintiffs had no right to bring a nuisance action because they "did not possess any easement of light, air, or view, nor do they possess any legal cause for complaint or interference therewith by the lawful erection of a building on respondents' property."  The condominium was permitted to remain.

When people live together in close proximity, they will inevitably use their properties in ways that will be annoying to each other and detrimental to each others' interests at times.  However, this does not necessarily mean that one of the parties has a legal claim against the other.  Use of real property is governed by overlapping layers of covenants, easements, ordinances, statutes, and case law.  Those sources must be examined in each case to determine whether the disputed use at issue is legal.