May 5, 2016

Legal Challenge to Amendment Restricting Leasing Held Untimely By WA High Court

The Washington Supreme Court recently unanimously ruled that a legal challenge to a recorded condominium declaration amendment restricting leasing was barred by a one-year statute of limitation in the Washington Condominium Act.  

A condominium declaration amendment received board approval, received at least sixty-seven percent owner approval, and was recorded.  A person bought a unit subject to that amendment and then argued in a lawsuit over four years later that the amendment required ninety percent owner approval (based on a different subsection of the WCA) because it changed the uses to which units were restricted. The Washington Supreme Court responded that "it is not immediately apparent which vote total was needed to approve the amendment" and that the legislature "may well wish to clarify" the WCA with regard to whether the definition of "use" includes the leasing of a unit.  However, the Court also noted that the amendment was voidable (rather than void from its inception, as in the case of fraud) from a legal perspective due to the process by which it was approvedThe Court therefore held that a one-year time bar for challenges to amendments in the WCA applied to this challenge regardless of the required approval percentage.  The Court concluded that "[t]o hold otherwise would render the time bar meaningless." 

Happy Cinco de Mayo to those WCA condominium associations that recorded declaration amendments restricting leasing with at least sixty-seven percent owner approval more than one year ago.

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.