Twenty homeowners in a San Juan Island development spent the better part of a decade fighting (literally and figuratively) over the meaning of a set of restrictive covenants governing the use of their land and a waterfront parcel, the boundaries between their lots and the waterfront parcel, the erection of a spite fence, and the management of their homeowners association. The Washington Court of Appeals began its ninety-six page unpublished opinion regarding this "saga" by noting that "the record reveals a level of animosity between Stevens and his neighbors and incivility between some of the parties and the attorneys that surpasses anything this court has ever seen." The parties probably incurred a huge amount of attorney fees during the course of this litigation. The Court's entire opinion is available here.
One portion of the Court's analysis merits emphasis. The Court ruled that an amendment to the homeowners association's Covenants, Conditions, and Restrictions ("CC&Rs") approved by sixty percent of the owners (stating that "tenants" are not "guests in the household" and therefore do not have the right to use common waterfront land) did not impose a new restriction on tenants' access to that land. As a result, an owner's argument that this amendment required unanimous owner approval because the CC&Rs permit only changes to existing covenants and do not authorize the enactment of new restrictions was rejected by the Court. It instead ruled that the amendment constituted a clarification of a pre-existing prohibition that could be adopted with the approval of sixty percent of the owners.
One portion of the Court's analysis merits emphasis. The Court ruled that an amendment to the homeowners association's Covenants, Conditions, and Restrictions ("CC&Rs") approved by sixty percent of the owners (stating that "tenants" are not "guests in the household" and therefore do not have the right to use common waterfront land) did not impose a new restriction on tenants' access to that land. As a result, an owner's argument that this amendment required unanimous owner approval because the CC&Rs permit only changes to existing covenants and do not authorize the enactment of new restrictions was rejected by the Court. It instead ruled that the amendment constituted a clarification of a pre-existing prohibition that could be adopted with the approval of sixty percent of the owners.
If a homeowners association's CC&Rs only permit that document to be "amended", then it may not amend that document to add new restrictions unrelated to any existing covenant without unanimous owner approval. Since it is not always clear whether proposed amendments contain such new restrictions, association boards should consult attorneys with experience in this area when they are considering CC&R amendments.
