Washington Courts Deny Attorney Fee Requests in Lawsuit Over Views and Trees

Two property owners sued their neighbor for interference with a view easement and to enforce the height restrictions associated with that easement.  Their neighbor filed a counterclaim against them for timber trespass because they cut down a cherry tree on her property that they believed was violating the view easement.  The trial court ruled in favor of the two property owners regarding the view easement's height restrictions, but it also ruled that the cherry tree was exempt from the view easement and that the two property owners' willful removal of that tree made them liable to their neighbor for treble damages under the timber trespass statute.  The court denied both parties' requests for attorney fees because neither was the prevailing party in the lawsuit.  The neighbor appealed the denial of her attorney fee request, and the appellate court affirmed that denial.

RCW 4.84.250 through .290 authorize a trial court to award attorney fees and costs to the prevailing party in damage actions where the party seeking relief requests $10,000 or less.  Under RCW 4.84.260, the plaintiff is the prevailing party when their recovery, excluding costs, is as much or more than the amount they offered to accept in settlement.  This encourages out-of-court settlements, penalizes parties who unjustifiably bring or resist small claims, and enables parties to pursue meritorious small claims without seeing the award swallowed up by the expense of paying an attorney.

The two property owners were willing to pay the amount of money that their neighbor demanded for timber trespass, but their neighbor was unwilling to accept that offer unless they would also resolve the remaining non-monetary issues concerning height restrictions in her favor.  The two property owners rejected that counteroffer, and the court concluded that it would contradict the purpose of RCW 4.84.260 for their neighbor to obtain attorney fees and costs where an agreement could have been reached absent her refusal to compromise on an issue on which she ultimately lost.                  

Washington Court Upholds Process Service of Owner by Publication

In a recent unpublished opinion, the Washington Court of Appeals decided that a condominium association was entitled to serve an owner with a lawsuit by publication.  This decision was based on its conclusion that the association exercised reasonable diligence to personally serve the owner before resorting to service by publication as required by statute. This diligence included attempting to serve the owner on five separate occasions within a month, conducting a three-hour stakeout of the owner's residence, and searching the county's property and tax records for additional addresses for the owner. 

New Washington Law Regulates Short-term Rentals

A new Washington state law regulating short-term rental of real property took effect earlier this year.  The new law requires at least one million dollars of primary liability insurance to be maintained when owners rent their properties on a short-term basis as that term is defined in the statute.  Given the damage and liability issues that can arise in connection with short-term rentals, community associations should take steps to ensure that any owners who are renting their properties on a short-term basis are complying with this law.

Washington Court of Appeals Affirms Order to Abate Water Trespass

The Washington Court of Appeals recently affirmed a trial court's order for a property owner to abate the flow of water from his drainage system to an adjoining property.  The trial court concluded that the property owner's improvements to a drainage system increased and concentrated the flow of water to his neighbors' property and that the resulting water trespass had caused flooding and erosion.  The appellate court held that "when surface water is collected and discharged upon adjoining lands in quantities greater than, or in a manner different from, the natural flow ... injunction is held to be a proper remedy."     

Courts Affirm Condo Board's Decision as Valid Exercise of Business Judgment

A condominium association's board agreed to allow a unit owner to install a heat pump on the condition that he sign a document to protect the association.  The unit owner argued in a lawsuit that imposing that condition breached the board's duty to exercise ordinary and reasonable care.  The board responded that the business judgment rule protected its decision.  The trial and appellate courts agreed with the board.

The business judgment rule requires boards to act in good faith and with such care as an ordinarily prudent person in a like position would use under similar circumstances.  Under this rule, a court will not substitute its judgment for that of the board unless there is evidence of fraud, dishonesty, or incompetence (i.e. failure to exercise proper care, skill, and diligence).  

The appellate court noted that the board sought and followed legal advice to create an agreement for heat pump installations.  The court considered this persuasive evidence that the board exercised ordinary and reasonable care.         

Appellate Court Upholds Outrage Judgment

Over the course of four months, a property owner regularly and repeatedly remote-started his pickup truck, revved its engine, and activated its alarm to scare a neighbor's young piano students as they walked past his truck on the way to their lessons.  The neighbor sued for the tort of outrage, and the trial court awarded her a judgment of $40,000.  On appeal, the Washington Court of Appeals held that annoying conduct done frequently over an extended period of time with the intent to cause severe emotional distress to a person can form the basis of an outrage claim and ruled that the owner's conduct was sufficiently outrageous and extreme to support the judgment against him.

Washington Legislature Amends WUCIOA

The Washington Legislature recently approved a new law updating the Washington Uniform Common Interest Ownership Act ("WUCIOA"; RCW 64.90) in various ways. The most significant changes related to condominium liability.    

Under the new law, officers and board members of condominiums are entitled to the same immunity from liability that is available to officers and directors of nonprofit corporations.  The new law establishes that condominium developers' warranties to unit purchasers include construction in accordance with engineering and construction standards, including applicable building codes, generally accepted in the state of Washington at the time of construction.  It also provides that physical damage to the unit or common elements, material impairment of the performance of mechanical, electrical, plumbing, elevator, or similar building equipment, or an actual, unreasonable safety risk to the occupants of the condominium is a necessary element to establish breach of warranty.  

The new law takes effect on July 28, 2019.  The periodic enactment of state laws is one reason that condominium and homeowners associations should consider an ongoing relationship with an attorney who focuses on community association law.     

Washington Court of Appeals Affirms Covenant Enforcement Jurisdiction

The Washington Court of Appeals recently ruled in an unpublished opinion that a superior court had jurisdiction over a covenant enforcement lawsuit by a community association against a set of its owners.  The litigation concerned the owners' decision to build an addition to their deck on their property without the approval of the association's architectural control committee as required by the association's covenants.  The superior court entered a judgment for the association that awarded over $200,000 in attorney fees, noting that it had original jurisdiction over actions for enforcement of covenants under Article 4, Section 6 of the Washington Constitution.   

Court of Appeals Upholds Condominium Association's Collection Action

The Washington Court of Appeals recently ruled in favor of a condominium association in an assessment collection dispute.  The Court affirmed the association's power to levy regular and special assessments for common expenses and its perfected lien on the unit.  It noted that the owner was not entitled under the association's bylaws to notice or an opportunity to cure prior to the referral of the assessment debt to an attorney for collection.  The Court finally rejected the owner's argument that summary judgment was inappropriate because she disputed the amount owed, pointing out that "she admits to owing money to the Association, and the Washington Condominium Act creates a lien for assessments that can be foreclosed on for any past due amount owed by a unit owner."             

Parking and Storage Litigation Resolved in Favor of Condominium Association

The Washington Court of Appeals recently ruled in favor of a condominium association in an unpublished opinion concerning the ownership of parking spaces and storage areas.  An owner came to believe that certain parking spaces and storage areas were appurtenant to his units.  The trial court concluded on summary judgment that the owner did not have a valid legal claim to those parking spaces and storage areas, and it went on to sanction the owner and his attorneys for filing a frivolous and meritless lawsuit.  The appellate court affirmed those decisions, noting that the owner was not able to demonstrate that an assignment of the relevant parking spaces and storage areas had ever occurred.                  

Failure to Prevent Transfer of Tree Debris Does Not Support a Nuisance Action

A married couple brought a nuisance action against their neighbors because debris from a tree on the latter's property caused staining on the former's property.  The trial court ruled that the married couple did not establish actionable nuisance (an unreasonable interference with another's use and enjoyment of property), and the Court of Appeals recently affirmed that ruling in an unpublished opinion.  The Court pointed out that a number of other courts, including the Washington Supreme Court in 1921(!), have indicated in past related cases that the failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree located wholly on his or her property onto a neighbor's property does not constitute a nuisance.  

Homeowners Associations Ruled Jointly Obligated to Maintain Pond

After examining the relevant plats and agreements, the Washington Court of Appeals ruled last month that two homeowners associations are jointly obligated to maintain a stormwater drainage pond.  The relevant documents were viewed to complement one other in a manner that established that shared obligation.  This case demonstrates that community associations must carefully evaluate their governing documents and agreements (and sometimes other associations' governing documents and agreements as well) when a dispute arises regarding maintenance obligations.