In a recent unpublished decision,
the Washington Court of Appeals considered a case involving a house and garage
that did not comply with setback requirements contained in recorded covenants. The owners did not obtain the association’s
approval before building those structures as required by the covenants. The trial court ruled that the owners had
violated the covenants, ordered them to tear down the home and garage, and
instructed them to obtain the association’s approval before building in the
future. The association eventually agreed
to allow the house to remain in exchange for a scaled-back garage and payment
of the association’s attorney fees.
The more recently published decision
of Green Bank Beach and Boat Club v. Bunney also involved a homeowners association's
attempt to enforce its governing documents.
In that case, a house that did not comply with a height limitation contained
in recorded covenants was built without the association’s approval. The trial court ordered the owners to modify
their house, and the Washington Court of Appeals upheld that ruling. However, the association’s covenants did not
contain any provisions entitling it to an award of its attorney fees. As a result, the association had to pay its
$75,000 legal bill itself.
Washington courts generally support
community associations when they seek to compel owners to comply with governing
documents. When legal action is
necessary and an attorney has advised that the facts and law are on the
association’s side, boards have good reason to be confident in the outcome. Entitlement to attorney fees, on the other
hand, is a separate issue. Boards should
determine at the outset whether their associations’ governing documents give
them the right to be awarded attorney fees if they prevail in litigation. This will allow them to properly evaluate the
risk associated with pursuing lawsuits to enforce covenants.
