November 6, 2015

Washington Court of Appeals Resolves Fence Dispute, Quotes Robert Frost

The Washington Court of Appeals recently issued a published opinion that addressed a dispute between two neighbors over a fence.  The opinion begins in style by quoting Robert Frost's poem "Mending Wall": "Before I built a wall I'd ask to know / What I was walling in or walling out, / And to whom I was like to give offense."  It then notes that this case illustrates the wisdom of Frost's observation in the context of an existing fence.

The trouble started when Owner A moved a fence over the objection of Owner B when a survey based on the deed description showed that the fence was located on Owner A's property.  Owner B then filed a lawsuit arguing that the fence constituted the boundary between their two properties pursuant to the legal doctrine of boundary by common grantor.  The trial and appellate courts accepted that argument.  

Application of the common grantor doctrine presents two questions: (1) was there an agreed boundary established between the common grantor and original grantee, and (2) if so, would a visual examination of the property show subsequent purchasers that the deed line no longer functioned as the true boundary?  The Court ruled that there was an agreed boundary in this situation because both owners' conduct showed an understanding that they owned adjacent parcels separated by the fence.  As the Court put it, the owners "manifested ownership of their separate properties in relation to the fence."  For example, Owner B occupied and cared for the property up to the fence line until the fence was moved by Owner A.  The Court went on to rule that a visual examination of the property gave notice that the fence was the true boundary.  It pointed out that "the record discloses no reason for the existence of the fence other than to function as a boundary between the properties."

October 21, 2015

Court Upholds Condominium Association Foreclosure that Extinguished Bank's Lien

In late 2009, a Washington condominium association foreclosed on a first position lien for delinquent assessments and purchased the unit at a trustee's sale for $8,818.17.  Deutsche Bank, which had a junior lien on the unit for $240,000 that was extinguished by that foreclosure sale, was notified of the association's foreclosure but did not respond.  Litigation later ensued concerning the validity of the association's foreclosure.  

The Washington Court of Appeals ruled in an unpublished opinion this summer that the association was entitled to foreclose on its lien (which had a limited six-month priority over the bank's lien pursuant to the Washington Condominium Act and its Declaration) regardless of whether there were any intervening liens and for any amount.  The court noted that Deutsche Bank failed to pay the association's lien, bid at the trustee's sale, or exercise its redemption rights despite being given ample notice and opportunity to do so.

Many foreclosures by condominium associations do not end well due to bank foreclosures and owner bankruptcies, so it is always good to be reminded that they can result in successful outcomes too.  The association's attorney can help it decide whether foreclosure is advisable and likely to result in payment.

October 14, 2015

Association Boards Should Get Their Legal Advice Straight from the Horse's Mouth*

The boards of some community associations that have property managers seldom or never communicate with their associations' attorneys directly.  This is hardly ideal.  The transmission of legal advice from attorney to client is performed most effectively when the client asks questions and receives the attorney's answers firsthand.  Nuance and complexity can be lost when legal advice is transmitted through agents.  Community association boards will obtain the best legal guidance if they play an active and direct role in the attorney-client relationship.

Washington appellate courts have been busily churning out opinions relevant to community associations recently, so more case law summaries are coming soon.

*Title inspired by the many good years I spent growing up in Texas. 

September 21, 2015

Washington Court Affirms Dismissal of Intentional Water Trespass Claim

In a recent unpublished opinion, the Washington Court of Appeals affirmed a trial court's dismissal of a property owner's intentional water trespass claim against neighboring property owners.  The plaintiff owned a residential lot in Spokane situated at the bottom of a v-shaped drainage basin.  Before 2009, she experienced no drainage problems.  In September of 2009, the Qualchan Hills HOA authorized construction of a concrete extension, which greatly increased drainage onto her lot, overburdened her small drainage pond, and caused flooding.  The plaintiff sued the Qualchan Hills HOA and most of the uphill property owners.  

The HOA entered into binding arbitration with regard to this dispute, and the Court noted that periodic flooding caused by the defective design or modification of a drainage system can constitute a continuing trespass.  However, the Court went on to hold that the neighboring property owners' passive usage of the water system at issue did not support an intentional trespass claim against them.  The Court pointed out that its 2013 opinion Jackass Mtn. Ranch, Inc. v. S. Columbia Basin Irr. Dist. upheld the dismissal of an intentional trespass claim against the operator of an irrigation system that created a landslide because no evidence existed the operator knew that the system would cause such a slide.   

September 8, 2015

Washington Court Affirms Homeowners Association's Internal Procedures

The Washington Court of Appeals recently ruled in an unpublished opinion that an owner's legal challenges to a Mason County homeowners association's internal procedures had no merit. The Court first ruled that the association's governing documents do not grant owners a general right to appeal the decisions of its board of directors. It next held that the association could exclude a board member from closed executive sessions of board meetings when he acted in his capacity as an owner and threatened litigation against it.  The Court finally ruled that the association's hazard tree policy is valid because it provides sufficient notice of proposed tree removals and an adequate appeal process.

The eleventh footnote of the court's opinion observes that homeowners associations in Washington state are not bound by constitutional due process requirements.  The first footnote of the court's opinion emphasizes that those associations are instead bound to manage their affairs pursuant to their governing documents, RCW 64.38, and RCW 24.03 (if incorporated).