In a recent unpublished decision, the Washington Court of Appeals considered a case involving a house and garage that did not comply with setback requirements contained in recorded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.