Washington Court of Appeals Issues Rattlesnake Ruling

A rattlesnake bit Mica Craig while he was shopping at a Walmart outdoor garden center in Clarkston, Washington.  Mr. Craig's subsequent lawsuit against Walmart was dismissed on summary judgment, and he appealed.  The Court of Appeals ruled in favor of Mr. Craig in a recent unpublished opinion.  The Court held that Walmart created a risk of rattlesnake bites and that Walmart owed Mr. Craig a duty of reasonable care to prevent his injury.

The Court's decision is based on a pithy observation: "Rattlesnakes wander." The Court decided that "Walmart's choice to locate an outdoor garden center in its parking lot and adjacent to undeveloped land where rattlesnakes are known to live created a reasonably foreseeable hazard .... that its customers would interact with wandering rattlesnakes hiding among the dirt, plants, and other items for sale .... [and] be bitten by a rattlesnake."  As the Court observed in the concluding paragraph of its opinion: "Most businesses have walls and doors that generally prevent wild animals, including rattlesnakes, from entering." 

Community associations must take steps to ensure the safety of their common areas.  If they fail to do so, then civil liability can result.     

Comply with Fire Alarm Requirements!

It's cold outside, so thoughts turn to fire. As Q13 reported last month, Snohomish County fire officials recently confirmed that fifteen local condominium and apartment buildings are not updated with legally required fire alarms.  The compliance crackdown came about a year after a fire killed a person in their Everett apartment on New Year’s Eve.  The building involved in that tragedy did not have a sprinkler system, which allowed the fire to spread through the attic.  

When community association boards fail to follow fire alarm requirements, they at a minimum subject their associations to compliance actions by local authorities.  Boards also subject their associations, their members, and the other owners to unacceptable risks associated with possible property damage, personal injury, and loss of life. Wise association boards seek to understand and comply with local fire alarm requirements. My office is here to help if your board is unclear about the association's obligations in this area.

Thankful for My Clients!

Happy Thanksgiving to my clients!  I am thankful for you and appreciate your contributions to your communities.  I will continue to represent your legal interests to the very best of my ability!  

FHA Condominium Owner-Occupancy Requirement Lowered in Some Situations

Until recently, condominiums that wanted to obtain FHA lending approval were required to be at least 50% owner-occupied.  HUD announced last month that it is willing to issue FHA approvals to condominiums with owner-occupancy percentages as low as 35% in certain circumstances.  This will allow more condominiums to obtain FHA approval for the benefit of their owners.

The following requirements must be met for a condominium project to be approved if it has an owner-occupancy percentage as low as 35%:

1. Existing project;

2. Use HUD Review and Approval Process option;

3. Financial documents must provide for funding of replacement reserves for capital expenditures and deferred maintenance in an account representing at least 20% of the budget;

4. No more than 10% of the units are delinquent; and

5. Three years of acceptable financial documents.

HUD's letter announcing this change noted that "owner occupants serve to stabilize the financial viability of the projects and are less likely to default on their obligations to ownership associations than non-owner occupants .... Owner occupants, unlike either investors or renters, are incentivized to cooperate with other unit owners to ensure successful operation of the project."  However, HUD decided that substantial reserves, a low percentage of delinquent owners, and evidence of long-term financial stability mitigate the risk associated with lower owner occupancy. 

Washington Court of Appeals Affirms Order to Trim Hedge Row and Restore View

A Mercer Island homeowner sued his downhill neighbors for specific performance of a covenant that requires landscaping to be maintained at a height no greater than the nearest roof peak.  His neighbors responded that a hedge row on their property could grow as tall as the roof peak of the plaintiff's home because it was the closest structure to that hedge row.  The trial court rejected that argument on summary judgment and ordered the downhill neighbors to trim the hedge row, concluding that the covenant pertains to the nearest roof peak on the same property as the vegetation.  The Court of Appeals recently affirmed that decision in an unpublished opinion.

The homeowner in this case sued in order to restore a view of Lake Washington that he was legally entitled to enjoy pursuant to a set of recorded covenants, and the value of that view is central to the Court's decision.  The Court notes that "it is common sense that a lakefront property is more desirable when it has a view of the lake."  It then points out that the covenants "call for landscaping to be maintained to protect the overall desirability of all of the properties in the subdivision" and that "it would be inconsistent with this provision to permit landscaping to grow so tall that it completely blocks the view from the uphill neighbor's outlook."

Court of Appeals Enforces Covenant Restricting Height of Trees and Hedges

The Washington Court of Appeals recently issued an unpublished opinion indicating that a row of trees violated a covenant restricting "hedges" to a height of six feet or less. The parties own property in a neighborhood on Whidbey Island that is built on a slope and that provides views of the Puget Sound and the Olympic Mountains.  Trees on downhill property blocked uphill property views, causing the uphill property owners to file a lawsuit arguing that the trees constituted a hedge in violation of a restrictive covenant.  The trial court ordered the downhill property owners to cut certain trees to a height of six feet or less, and those owners appealed.

The Court of Appeals noted that one definition of "hedge" is "a boundary formed by a row of trees planted close together."  The Court decided that the row of trees constituted a "hedge" under the terms of the restrictive covenant and that it was therefore subject to the height restriction.  The Court emphasized that the scenic location and views are an important part of the value of the properties and that protecting views is in the homeowners' collective interest.      

Court Rejects Condominium Owner's Attempt to Invalidate Assessments

In a recent unpublished opinion, the Washington Court of Appeals affirmed the trial court's summary judgment denial of a condominium owner's legal challenges to the assessments charged to his unit.  The owner argued that the assessments were invalid in a variety of ways, but the Court held that he did not offer sufficient evidence to support any of them.  The Court also noted that "the owner of a condominium residential unit may not withhold payment of condominium assessments as a form of protest."        

Regulating Parking in Your Community Association

I recently had the pleasure to participate in a HOAleader.com webinar about regulating parking in condominium and homeowners associations.  We discussed parking enforcement methods (notices, fines, and towing) and how to avoid legal pitfalls related to them.  We noted that restricting certain types of vehicles (commercial vehicles, inoperable vehicles, oversize vehicles, recreational vehicles, boats) has become a more important issue for associations.  We also touched on a variety of other issues, including handicapped parking, space reassignment, speeding limits, and emergency access. 

If you would like to order the HOAleader webinar, it is available for purchase here.  

Receivers to the Rescue?

The Washington Court of Appeals issued a published opinion last month pertaining to the Washington Receivership Statute (RCW 7.60).  The Court noted that "the legislature intended the Receivership Statute to benefit creditors having interests in property administered by the courts."  Receivers may thus be appointed by courts upon the commencement of foreclosure actions in order to lease properties.  The Washington Condominium Act (RCW 64.34.364(10)) describes such receiverships in the following manner:

"From the time of commencement of an action by the association to foreclose a lien for nonpayment of delinquent assessments against a unit that is not occupied by the owner thereof, the association shall be entitled to the appointment of a receiver to collect from the lessee thereof the rent for the unit as and when due. If the rental is not paid, the receiver may obtain possession of the unit, refurbish it for rental up to a reasonable standard for rental units in this type of condominium, rent the unit or permit its rental to others, and apply the rents first to the cost of the receivership and attorneys' fees thereof, then to the cost of refurbishing the unit, then to applicable charges, then to costs, fees, and charges of the foreclosure action, and then to the payment of the delinquent assessments. Only a receiver may take possession and collect rents under this subsection, and a receiver shall not be appointed less than ninety days after the delinquency. The exercise by the association of the foregoing rights shall not affect the priority of preexisting liens on the unit."

My office is available to assist your association if it wants to appoint a receiver to lease a delinquent property during a foreclosure action.    

Proud to Be a Washington Community Association Attorney!

32 of the 55 framers of the Constitution were attorneys.  Jokes aside, the legal profession has long been a profession of leadership.  As WSBA governor-at-large Sean Davis recently noted in an excellent article in NWLawyer: "We are regularly called upon when circumstances are at their worst and when stakes are highest: charged with guiding and informing decisions, often between two or more undesirable outcomes. Our willingness to speak up, remain silent, or provide influence through other means is a form of leadership: good, bad, or otherwise .... [T]he response we provide tends to carry significant weight with the hearer."  I'm proud to be a member of the legal profession.

Washington's Rule of Professional Conduct 2.1 ("Advisor") authorizes attorneys to "exercise independent professional judgment" and to "refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."  Mr. Davis pointed out in his article that this ability to guide individuals in an evaluation of considerations beyond the law "is a unique position that our profession formally holds in society."  I enjoy providing Washington condominium and homeowners associations with that kind of comprehensive legal advice. 

Have a safe, restful, and appreciative Independence Day!

Neighbors Tangle in Court Over Severed Tree Roots

The roots from two large trees growing on one property encroached onto a neighboring property.  The neighboring owner removed the roots, which damaged the trees and led to a lawsuit.  The trial court dismissed the lawsuit, and the Court of Appeals affirmed that dismissal in a published opinion last month.  The Court held that the neighboring owner had the right to remove the portions of the roots that encroached onto his property, and it further held that he did not owe the trees' owner a duty of due care to prevent damage to the trees.

The Court noted during its opinion that tree branches that extend over the land of another are "technical nuisances [that] the person over whose land they extend may cut ... off."  It also mentioned an unusual case in which one set of neighbors sued another set of neighbors for building a condominium that blocked their western view.  The Court decided in that case that the plaintiffs had no right to bring a nuisance action because they "did not possess any easement of light, air, or view, nor do they possess any legal cause for complaint or interference therewith by the lawful erection of a building on respondents' property."  The condominium was permitted to remain.

When people live together in close proximity, they will inevitably use their properties in ways that will be annoying to each other and detrimental to each others' interests at times.  However, this does not necessarily mean that one of the parties has a legal claim against the other.  Use of real property is governed by overlapping layers of covenants, easements, ordinances, statutes, and case law.  Those sources must be examined in each case to determine whether the disputed use at issue is legal.

Legal Challenge to Amendment Restricting Leasing Held Untimely By WA High Court

The Washington Supreme Court recently unanimously ruled that a legal challenge to a recorded condominium declaration amendment restricting leasing was barred by a one-year statute of limitation in the Washington Condominium Act.  

A condominium declaration amendment received board approval, received at least sixty-seven percent owner approval, and was recorded.  A person bought a unit subject to that amendment and then argued in a lawsuit over four years later that the amendment required ninety percent owner approval (based on a different subsection of the WCA) because it changed the uses to which units were restricted. The Washington Supreme Court responded that "it is not immediately apparent which vote total was needed to approve the amendment" and that the legislature "may well wish to clarify" the WCA with regard to whether the definition of "use" includes the leasing of a unit.  However, the Court also noted that the amendment was voidable (rather than void from its inception, as in the case of fraud) from a legal perspective due to the process by which it was approved.  The Court therefore held that a one-year time bar for challenges to amendments in the WCA applied to this challenge regardless of the required approval percentage.  The Court concluded that "[t]o hold otherwise would render the time bar meaningless." 

Happy Cinco de Mayo to those WCA condominium associations that recorded declaration amendments restricting leasing with at least sixty-seven percent owner approval more than one year ago.

Washington Court of Appeals Resolves Road Maintenance Agreement Dispute

The Washington Court of Appeals ruled in a published opinion last month that a road maintenance agreement did not create a homeowners' association and that a majority of lot owners lacked the authority to amend that agreement to adopt governing procedures. 

According to the statutory definition of "homeowners association": (1) there must be a corporation, unincorporated association, or other legal entity, (2) each member of the entity must be an owner of residential real property within the entity's jurisdiction as described in its governing documents, and (3) members must be obligated to pay real property taxes, insurance premiums, maintenance costs, or for improvement of real property that the member does not own. The Court ruled that a road maintenance agreement did not create a corporation, unincorporated association, or other legal entity.  As a result, a homeowners association was not formed.

The Court also considered whether the road maintenance agreement can be amended by majority vote. It decided that all lot owners must agree to any amendment because the agreement does not authorize amendments by any lesser standard.  The amendments describing governing procedures were therefore invalid because they were based on a mere majority.

Court Reverses Antiharassment Order Due to Neighbor's Easement Claim

Christopher Geiger and Marcellus and Lisa Buchheit own adjoining parcels of property on the north side of Lake Stevens.  Mr. Geiger owns and lives on lot 1, the upland parcel. The Buchheits own lot 2, which is located on the waterfront south of Mr. Geiger's parcel.  Lot 2 has a dock, boat ramp, and bulkhead, and the Buchheits plan to construct a house on it in the future.

Mr. Geiger began to use lot 2 without the Buchheits' permission.  When they accused him of trespassing, he claimed to have an easement over lot 2.  The Buchheits then sought and were granted an antiharassment order of protection that directed Mr. Geiger to stay off lot 2.  Mr. Geiger then appealed that order, arguing that the antiharassment statute may not be used to resolve disputes involving real property to which the other party has a claim.  The Washington Court of Appeals agreed, ruling that a recorded document submitted in support of the appeal gave rise to a "cognizable" claim to an easement over lot 2.  The Court decided that in this context a "cognizable claim" is one upon which relief can be granted if it possible that facts could be established that would support relief (a low standard).

The Court points out in its published opinion that the easement at issue is "carelessly drafted". The Court notes that the easement granted for the benefit of lot 1 is access over a strip of lot 1.  The commissioner who presided over the anitharassment petition was not convinced that Mr. Geiger had a valid easement over lot 2. In his words, the recorded document "is contradictory, it is internally inconsistent, and I cannot interpret it in this forum and in this context one way or the other."  This is an unfortunate example of why it is a good idea to retain the services of an attorney when it is time to draft a document that affects legal rights.  However, with the help of able legal counsel, Mr. Geiger was still able to advance a legal argument based on scrivener's error and reformation to support a claim to an easement over lot 2 under less than ideal circumstances.

Hello from the Law Office

I take pride in providing my community association clients with quality legal services.  However, I can't help associations that don't seek help. Some association boards seem reluctant to incur legal expenses of any kind unless a lawsuit is received or threatened.  This is penny wise and pound foolish.  When questions arise regarding how to amend, interpret, or enforce the association's governing documents, it is almost always advisable for the board to ask the association's attorney if the majority's desired course of action raises any legal issues. State law and the association's governing documents are filled with duties and restrictions that many boards (and owners) only learn about when they consult an attorney for the first time.  Boards need an experienced guide to navigate that legal minefield, and only attorneys have the necessary expertise to serve in that role.

The perceived high cost of legal services is often cited as the major impediment to obtaining them.  However, this ignores the reality that clients always have the ability to limit the amount of time spent by attorneys on any given matter. If a board is concerned that involving the association's attorney will inevitably lead to a large bill, then it should impose fee caps and look for a more efficient attorney, not forgo legal advice entirely.  Money spent ensuring that the association follows the law and its governing documents is money well spent.

Finally, a few words about time.  When association boards do seek legal guidance, they often contact their attorneys only a short time before the proposed actions or meetings. This prevents those attorneys from giving those matters the considered attention that they deserve and compels them to instead provide the best responses possible under the circumstances.  Association boards that provide their attorneys with a longer period of time to evaluate their situations will almost always receive superior legal services as a result.