November 30, 2015

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.  

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."