A deck adjacent to a townhome in Kirkland, Washington was rebuilt by a homeowners association in a manner that encroached more than fifty feet into its common areas. The association later discovered that the deck was significantly larger than allowed and gave the owners of the townhome two options: 1) take over maintenance of the deck or 2) allow the association to remove and rebuild the deck to the appropriate specifications. The owners rejected both options and sued the association, alleging among other claims that they had acquired ownership of the portion of the common areas affected by the deck encroachment through adverse possession. The trial court dismissed the owners' lawsuit, and the Court of Appeals affirmed that decision.
The Court of Appeals initially pointed out in its unpublished opinion that the Washington Growth Management Act bars adverse possession claims against homeowners associations' common areas. It went on to note that the association's decision to take no action against decks that encroached less than fifty feet into its common areas was a reasonable exercise of its enforcement power that sought to balance the harm associated with violations with the costs associated with enforcement and the risks associated with litigation. The Court concluded by ruling that under the association's declaration the owners must pay the association's legal fees because their lawsuit resulted in the enforcement of a covenant.
