Washington Court Rules that Light May Be Nuisance and Tree May Be Spite Structure

The Washington Court of Appeals recently ruled in a published opinion that a driveway light installed in compliance with the local code could nonetheless constitute a nuisance if certain facts are proven on remand.  The Court also ruled that a large planted tree could constitute a "spite structure" prohibited by state statute if certain facts are proven on remand.  Yes, even light and trees can be bad sometimes.      

An activity is a nuisance when it interferes unreasonably with a neighbor's use and enjoyment of his or her property.  No Washington case up to this point had decided that light can be a nuisance, but the Court ruled in this case that "a trier of fact could find that the driveway light, without the available adjustment of its shield, offends the senses so as to essentially interfere with the comfortable enjoyment of Haley's home."  The Court deemed it significant that no harm was identified resulting from an adjustment of the light shield at issue.  

A Washington statute provides a person with the right to obtain an injunction if a neighbor maliciously erects a structure intended to spite, injure, or annoy that person.  No Washington case up to this point had decided that one planted tree can be such a structure, but the Court ruled in this case that "a single tree artificially located and planted with spiteful intent may, depending on the circumstances, constitute a structure within the meaning of RCW 7.40.030." The Court based its ruling in part on a 1991 Washington case which held that a row of trees planted along a property line may constitute a fence prohibited by a restrictive covenant.                   

Court's Decision Compels Condominiums to Evaluate Validity of Leasing Restrictions

Condominiums created on or before July 1, 1990 are governed by the Washington Horizontal Property Regimes Act.  The Washington Condominium Act (WCA) governs condominiums created after July 1, 1990.  Under the WCA, a condominium declaration may be amended by the vote or agreement of owners to which at least 67 percent of the votes are allocated.  However, the WCA also requires the vote or agreement of a special supermajority (each unit particularly affected and the owners of units to which 90 percent of the votes are allocated) if an amendment changes "the uses to which any unit is restricted."  

The Washington Supreme Court recently decided in a unanimous published opinion that a WCA condominium's declaration amendment restricting the leasing of units was invalid because an insufficient number of owners (67 percent) approved it.  The Court first pointed out that leasing is identified as a use of a unit in the condominium's declaration.  It next noted that WCA condominiums must obtain special supermajority approval in order to amend their declarations to change the uses to which any unit is restricted. The Court concluded that this condominium's declaration required it to obtain special supermajority approval in order to amend its declaration to restrict leasing.  The amendment at issue was held to be invalid because such approval was not received. 

Many WCA condominiums' declarations identify leasing as a use of a unit.  Those condominiums' declaration amendments restricting leasing are invalid if they were not approved by a special supermajority.  Our office is here to help if your condominium association has questions about the validity of an existing declaration amendment that restricts leasing or about the necessary approval percentage for a new declaration amendment that restricts leasing.  

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."

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.

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. 

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.   

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).  

Washington Appellate Court Affirms Enforcement of View Easement

In a recent unpublished opinion, the Washington Court of Appeals affirmed a trial court's decision that a recorded view easement protects views of the Olympic Mountains from the main floor of a home in rural King County and requires maintenance of vegetation on an adjacent property to the extent that it exceeds the top of certain foothills and obstructs the view of the mountains which appears above them.  The view easement at issue was intended to "protect the reasonable expectation of landowners to have and protect such views as they exist on the date of the making of this agreement" and provided that the properties shall have a "reasonable unencumbered view of the Olympic Mountains."  A beautiful (and valuable) view of the mountains was thus preserved through the judicial process.

The Pacific Northwest abounds in stunning scenery, and owners of property in this region are often interested in preserving views.  Recording a view easement in conjunction with neighboring properties is the legal way to accomplish that goal.  If such an easement does not exist, then a property owner can not force his or her neighbor or homeowners association to preserve or restore a treasured view.   

We Only Represent Condominium and Homeowners Associations

We often receive calls and emails from individuals who are involved in disputes with their community associations.  However, our office only provides legal representation to condominium and homeowners associations.  It does not accept individual property owners as clients.

The Washington appellate courts have issued several unpublished opinions over the last month that are relevant to community associations.  Posts regarding those opinions are coming soon.  Stay cool out there!

Washington Court: Leasing Restriction on Homes Does Not Apply to Condominiums

The Washington Court of Appeals ruled in a recent unpublished opinion that a leasing restriction on "single-family homes" contained in the declaration of a master community does not apply to condominiums within that community.  The Court reached its decision by closely examining the declaration's definitions section.  

The declaration defined the term "home" as "any structure located on a lot ... intended for use and occupancy as a residence by a single family" and the term "condominium" to include "units located in duplexes, fourplexes, and other multi-dwelling-unit buildings."  The Court noted that a "condominium" does not fall within this definition of a "home." 

The declaration also defined the term "living unit" to mean "a building or structure or any portion thereof ... that is designated and intended for use and occupancy as a residence by a single family, including attached or detached houses, condominiums, and units within apartment buildings."  The Court viewed the leasing restriction's reference to the narrower term "homes" rather then the broader term "living units" to indicate that condominiums are not covered by that restriction.

Boards of Washington condominium and homeowners associations should seek legal guidance if disputes arise regarding the meaning of their governing documents.

Washington State Legislative Update for Community Associations

The Washington State Legislature did not approve any significant new laws affecting community associations in 2015.  A bill to replace the existing state laws pertaining to community associations was discussed in committee, but it did not have sufficient support to proceed.  A revised version of that bill will be proposed again next year, and the scope of its applicability and the content of its provisions are sure to be the subject of intense debate.

Washington Court of Appeals Rules Slip Victim Assumed Risk

The Washington Court of Appeals recently ruled in an unpublished opinion that a man assumed the risk of slipping and falling on accumulated ice and snow in a roadway.  As a result, the Court upheld the summary judgment dismissal of his lawsuit against his apartment complex.

Landlords have a general legal duty to keep common areas free from dangerous accumulations of snow and ice, but they are generally not liable for damages caused by dangers that are known or obvious to the injured person.  The Court held that the defense of implied primary assumption of risk applied in this case because the injured person had full subjective understanding of the presence and nature of the specific risk and voluntarily chose to encounter that risk.

The Court included a fun footnote near the end of its opinion.  During a discussion of the risks posed by snow and ice, the Court mentioned the "proverbial hundreds of Inuit words for snow" and cited a 2013 Washington Post story by David Robson titled There really are 50 Eskimo words for 'snow'.  This article observed that "for many of these dialects, the vocabulary associated with sea ice is even richer."  

Court Resolves Dispute Over Sewer Line Damage Caused by Tree Roots

The Washington Court of Appeals recently issued a published opinion involving downhill homeowners' claims against neighboring uphill homeowners and a neighboring uphill undeveloped property owner for damage to their residence caused by a clogged private sewer line shared by the homeowners.  The Court affirmed the trial court's order directing the neighboring uphill homeowners (who used and benefited from the sewer line) to pay an equal share to repair the sewer line, dismissing the claims against the neighboring uphill homeowners for damage to the residence, and dismissing all claims against the neighboring uphill undeveloped property owner (which did not use or benefit from the sewer line).  The Court held that no controlling legal authority imposed an affirmative duty on the parties to inspect the sewer line.

During the course of its opinion, the Court discussed a property owner's potential liability when the roots of trees on the owner's property invade a neighboring property and cause damage.  It pointed out that the Washington Supreme Court resolved a 1945 dispute involving such facts by holding that "it is the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another." Luckily for the neighboring uphill undeveloped property owner in the recent case, the roots of the tree on its property clogged the portion of the sewer line underneath its property but did not invade any neighboring property.  

Washington Supreme Court Affirms Drainage Pipe Maintenance Decision

The Washington Supreme Court recently upheld an appellate court's decision that the City of Bothell assumed responsibility for maintaining a drainage pipe installed in a residential subdivision in Snohomish County.  The Court concluded that the only reasonable interpretation of the plat is that the City assumed responsibility to maintain that pipe.  My previous post about this case in 2013 is here.

Sometimes the Court includes a choice quote or two in its opinions.  This opinion features this response to the City's attempt to raise a constitutional argument: "Naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion."       

HOAleader.com Interviews Discuss Actions Without Meetings and Alcohol at Meetings

I was recently interviewed by HOAleader.com regarding two interesting questions that community association boards sometimes encounter.  First, can boards act without a meeting?  Second, can boards allow alcohol at meetings?  To see how I and other industry professionals responded to those questions, please follow these links: 

Can Boards Act Without a Meeting?

Can Boards Allow Alcohol at Meetings?  

Recent Court Decision Interprets Tree Covenants

The Washington Court of Appeals recently issued an unpublished decision that interpreted covenants governing trees in a residential community.  The Court ruled that the covenants prohibit removal of natural tree growth consistent with the plan of development and impose a six foot height limitation on trees not protected under the plan of development (including natural growth).  The Court noted that the tree height restriction must be enforced even if that necessitates the removal of the trees at issue. 

The Court admitted during the course of its decision that the tree covenants before it were "not a model of clarity." It can also sometimes be difficult for association boards to decide what certain covenants mean.  Consulting with an experienced attorney can help ensure that such covenants are understood and enforced in the correct manner.