WA Court of Appeals Upholds HOA's Enforcement of Home Business Restriction

Division Two of the Washington Court of Appeals recently published an opinion concerning the validity of an owner's business-related activities within a homeowners association. It decided that the owner's conduct violated one of the covenants that governed the property. The court also rejected the owner's argument that the association had waived its right to enforce that covenant.   

The association’s common space contains an airstrip that all property owners have a right to use for their private planes. The use of the airstrip is subject to restrictions outlined in a set of recorded covenants, including a prohibition on home businesses unless they are entirely within the owner's residential structures and operate in a manner that gives no outward appearance of a business.

The owner's business trained five or six students daily on wing walking within their hangar. Wing walking is climbing from the cockpit to the upper wing rack and along the lower wing and climbing around the exterior of the plane with a safety harness and cable. Training included lessons, photos, and a flight. Students arrived around 8:30 a.m. in four to six cars. Three planes were kept on the property and shuffled in and out of the runway. Only one student could be trained at a time while the others congregated inside and outside the hangar structure. The court held that operating this home business in this manner gave an outward appearance of a business and thus violated the covenant at issue. 

The court also decided that the association did not waive its right to enforce the home business restriction. It first pointed out that the set of covenants expressly includes a provision that failure to enforce any covenant or restriction is not a waiver of the right to do so in the future. The court further noted that there was no evidence that the association had stated an intention to relinquish its right to enforce this covenant.

Court Rules HOA May Not Enforce Time-Based Restriction on Political Yard Signs

The Washington Court of Appeals recently affirmed that homeowners associations (HOAs) that are still subject to RCW 64.38 may not impose time-based restrictions on owners' display of political yard signs. RCW 64.38.034(1) (which governs HOAs created before July 1, 2018, but not condominium associations of any age) states that HOAs' governing documents "may not prohibit the outdoor display of political yard signs by an owner or resident on the owner or resident's property before any primary or general election." Those documents may only "include reasonable rules and regulations regarding the placement and manner of display of political yard signs."   

HOAs created on or after July 1, 2018 and older HOAs that have adopted RCW 64.90 in its entirety are governed by RCW 64.90.510(2), which expressly authorizes them to "adopt rules governing the time, place, size, number, and manner" of political signs. This court decision does not affect those associations.  

WA Court of Appeals Rules in Favor of Association's Covenant Enforcement Action

The Washington Court of Appeals recently affirmed a trial court’s decision that a community association properly exercised its authority to enforce protective covenants requiring buildings to present a finished external appearance within one year and requiring members to keep their properties free of clutter and other unsightly structures and conditions. The Court noted that the property owner failed to install permanent roofing on his house and barn for over one year without good cause and kept piles of construction materials in places that were visible from the road. The Court concluded that the owner’s attempts to invalidate the enforcement action lacked merit and that the association had the right to remedy the covenant violations at issue. The owner was also required to pay the association’s attorney fees.

Enforcing governing documents sometimes requires litigation, and the owners in question usually attack their community association’s enforcement procedures both in general and as applied to them. Association boards that work with a qualified attorney can ensure that their enforcement procedures and actions are likely to survive such scrutiny.    

Court Upholds Association's Decision to Refrain from Enforcing Covenant

In a recent unpublished Washington Court of Appeals opinion, a lot owner had sued his homeowners association and contended that it had a duty to take certain actions with regard to parking enforcement. The appellate court disagreed with that contention on several grounds, one of them being that the declaration of covenants states that the Association has the power to enforce it but is not required to do so. The court observed as follows: 

"When a homeowners’ association makes a discretionary decision in a procedurally valid manner, we must not substitute our judgment for that of the homeowners’ association unless there is fraud, dishonesty, or incompetence .... The supreme court noted that this rule was necessary to insulate homeowner associations from being subjected to lawsuits anytime a homeowner disagreed with a discretionary choice made by the Board."

If your community association board has questions about the nature and scope of its covenant enforcement powers and duties, then it should consider retaining a qualified attorney to provide clarity.

Defendant in Covenant Violation Lawsuit Ruled to be Entitled to Attorney Fee Award

A recently issued court opinion in Washington state concerned a line of cypress trees near the boundary between two properties that allegedly blocked a view of sunsets and downtown Portland in violation of restrictive covenants on those properties. A significant issue was whether the plaintiffs were responsible to pay the attorney fees incurred by the successful defendants. The court ruled that both owners who violate covenants and owners who unsuccessfully pursue claims that other owners are violating covenants are liable to pay the other party's attorney fees. The court pointed out that "interpreting the CCRs to provide recovery for homeowner-versus-homeowner litigation encourages compliance and discourages spurious litigation among neighbors, which is consistent with the law's directive to interpret HOA covenants in a manner that supports all the owners' collective interests."       

Is the Board Thankful for Constructive Criticism?

Washington condominium and homeowners association boards are obligated to comply with and enforce the governing documents and state law. This will inevitably result in conflicts with owners who have different interests, priorities, and interpretations, and such conflicts sometimes involve heated words and unfair accusations. However, boards should make every effort to view owners' challenges to their decisions and authority as constructive criticism and learning experiences. This can both prevent unnecessary litigiation and produce better rules and policies.

Court Affirms Homeowners Association's Decision to Grant Fence Variance

The Washington Court of Appeals ruled earlier this month that a homeowners association committee properly exercised its authority under real estate covenants to grant owners a variance for a boundary fence made of cedar. The covenants bestowed on the committee the sole and exclusive authority to consider and grant variances from any restriction and stated that the committee's decision is final. The committee visited the property at issue and determined that the replacement fence was more attractive than the original fencing, well-harmonized with the surrounding environment, matched many other solid cedar style fences in the community, did not significantly block light to the neighbors' property, and likely improved the value of neighboring properties. The Court upheld the committee's decision to grant a variance, pointing out that:

"The Washington Supreme Court recently emphasized that homeowner association decision-makers are due significant deference in these situations: '[W]hen a homeowners' association makes a discretionary decision in a procedurally valid way, courts will not substitute their judgment for that of the association absent a showing of 'fraud, dishonesty, or incompetenance (i.e., failure to exercise proper care, skill, and diligence) [citation omitted].'"      

Washington Court of Appeals Rejects Owner's "Right to Surveil" Claim

The Washington Court of Appeals ruled in a recent unpublished opinion that a homeowner who was bound by a protection order did not have the constitutional due process right to surveil his neighbors' allegedly illegal activity by photographing and videotaping them. The Court first noted that protecting citizens from harassment is a compelling state interest. It then pointed out that RCW 10.14.080(6)(b) authorizes a court to prohibit a harasser from making any attempts to keep the victim under surveillance.

There are several state laws that may be invoked by any person suffering from unlawful harassment. The primary remedy under those laws is a protection order limiting the harasser's contact with the victim. If that order is violated, then the harasser is subject to additional civil and criminal penalties.

If a community association receives a complaint from an owner that they are being subjected to unlawful harassment, then it should consult an attorney to determine whether such harassment is occurring and, if so, what actions the association should take to address that misconduct.

Heated Words or Unlawful Harassment?

A petitioner for a protective order must show they have been a victim of unlawful harassment. “Unlawful harassment” is defined by RCW 10.14.020 to mean “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner.” In a recent unpublished opinion, the Washington Court of Appeals affirmed that one party’s accusation that the other party was a prostitute was defamatory and constituted harassment. Association boards should consider the above harassment standard when deciding whether an owner's conduct warrants a warning letter or a fine.

Residential Use Covenant Held to Take Precedence Over Zoning Authorization

The Washington Court of Appeals issued an unpublished opinion concerning the use of real property earlier this month.  The Court ruled that a subdivision's restrictive covenant mandating residential use of property took precedence over a county's authorization for an owner to use its property for nonresidential purposes.  The Court pointed out that "enforcement of public zoning laws and private restrictive covenants are distinct processes" and concluded that "[t]he fact that Jabco obtained approval for nonresidential use of its property through the county's zoming procedures does not mean that it was entitled to disregard restrictions contemplated by private covenant."

Covenant enforcement can lead to costly litigation and significant liability. If your Washington community association becomes involved in a covenant enforcement dispute, then it should consider contacting an attorney with experience in that practice area.

Washington Court of Appeals Affirms Judgment for Misuse of Easement

Several property owners had a dispute concerning the validity and enforcement of three easements.  Two of the property owners misused the easements by initiating loud confrontations with neighbors about them, by intimidating neighbors from accessing their property within the easement areas, by destroying objects of private property, by forcing neighbors to incur debt due to unpaid public utilities, and by bringing noise and traffic onto neighbors' private property.  A judge in the ensuing litigation ruled that those two property owners unlawfully deprived their neighbors of "peace, privacy, security, and the quiet use and enjoyment of their homes" and thereby caused them to suffer economic damages and emotional distress. This decision was affirmed on appeal.

Disputes with owners regarding property use and access can escalate quickly and lead to lawsuits. Timely guidance from an experienced attorney can help ensure that an association achieves its objectives and avoids liability when it becomes involved in such disputes.

Washington Courts Reject Owners' Claim to Own Portion of HOA's Common Areas

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.

Washington Court of Appeals Affirms HOA's Removal of Gate and Boulders

A homeowners association removed boulders and a gate that two owners had placed in a road easement and assessed those owners for the cost of that removal.  When the owners failed to pay that assessment and monthly dues, the association filed a lien foreclosure action. The trial court permitted foreclosure of the association's lien, and the Court of Appeals upheld that decision. The Court held that the covenants governing the property express the "intent to grant the homeowners association plenary power over use of the roads and to preclude any owner from obstructing a road" and grant the association the exclusive authority to erect gates.

The owners argued that the association's failure to object to the gate and boulders for twelve years supported the conclusion that the association authorized their installation. The Court of Appeals rejected that argument, noting that the covenants contained an anti-waiver clause that allows the association "to enforce any of its provisions even if it did not enforce the provision initially."

Washington Court of Appeals Affirms Dismissal of Defamation Claims

A small group of homeowners expressed very negative views about another homeowner in their neighborhood on social media.  For example, they asserted that she was a "problem board member," "insane," and "a plague." She sued them for defamation.  The Washington Court of Appeals recently affirmed the summary dismissal of her lawsuit.

The Court initially noted that the plaintiff was required to show that the defendants' statements were "provably false" in order to prevail.  It next observed that the medium and context in which the statements were published and the audience to whom they were published must be taken into account.  The Court went on to rule that the defendant's statements were "opinions, substantially true, or not shown to be provably false" and that a social media audience "expects the speaker to use exaggeration, rhetoric, or hyperbole" and is "likely to view such representations with an awareness of the subjective biases of the speaker."

Later in its opinion, the Court concluded that the association's board of directors had the authority to adopt a fine and fee schedule pursuant to state law even though the applicable covenants did not explicitly grant the board that power and only described enforcement as being "by proceedings at law or in equity."  The Court interpreted those covenants in that manner in order to "protect the homeowners' collective interest in having covenants enforced."

How Will Coronavirus Affect Your Community Association?

The coronavirus pandemic is likely to have serious consequences for many Washington condominium and homeowners associations.  Those associations' financial, maintenance, enforcement, and meeting policies may be significantly impacted by this crisis.  Prudent boards will anticipate virus-related problems and prepare for them.

A large number of owners may soon lose a substantial amount of income in the near future due to severe illness, lengthy school closures, and fewer hours at their jobs.  If the economy slips into recession, then some owners will become unemployed for lengthy periods.  Those events are likely to result in more unpaid assessments in the short to medium term.  Association boards should consider temporary adjustments to their policies concerning payment plans for unpaid assessments (for example, smaller payments over longer terms) and referral of delinquent accounts to attorneys for collection.  Boards should also anticipate an increased need to incur attorney fees in order to pursue legal action against seriously delinquent accounts.  As a result, they should consider increasing the amount provided for legal expenses in the association's budget.  

Given the probable increase in delinquencies in the near future, boards should consider delaying non-urgent maintenance and repair work for at least the next several months.  This will give them an opportunity to evaluate the effect of the virus on their associations' finances and to reschedule projects and reallocate funds if necessary.  However, boards should also consider arranging for commonly used items and surfaces in their associations' common areas to be cleaned and disinfected more frequently and thoroughly over the next several months in order to reduce the number of transmissions that occur in those areas.  

The difficulties that many owners will soon face due to sickness, child care, and loss of income may result in more antisocial behavior and covenant violations over in the short to medium term as well.  This may necessitate the imposition of more fines and more referrals to the association's attorney for enforcement action. A community association board in Washington state is not legally permitted to fine an owner until it has adopted a fine schedule, distributed it to all owners, and given the owner notice and an opportunity to be heard.

Given the necessity for a period of social distancing, associations may find it more difficult to hold meetings due to lack of quorums. Boards should consider temporarily allowing owners and directors to attend meetings by telephone or video-conference and to vote by mail or e-mail. Boards should also consider cancelling social gatherings in common areas for at least the next several months.

Legal Advice Is Sometimes A Legal Duty

Washington condominium and homeowners association boards are legally required to exercise ordinary and reasonable care while performing their duties.  Those boards should therefore seek legal advice if they are called upon to enforce their associations' governing documents in unfamiliar situations or if their authority to enforce the governing documents is challenged by one or more owners.  Washington courts have ruled that obtaining legal advice provides community associations and their board members with protection from civil liability related to governing document enforcement.  My office is available to assist Washington condominium and homeowners association boards that need such legal advice.                

Washington Court Upholds Homeowners Association's View Enforcement Decision

A Snohomish County homeowner recently proposed to increase the height of his roof by seven feet, which obstructed the view of Puget Sound from at least one neighboring house.  After the Picnic Point Homeowners Association denied his proposal, the homeowner sued.  The Court of Appeals ruled in a published opinion last month that the plain language of the covenants and the relevant extrinsic evidence supported the Association's enforcement decision.

The Association’s covenants state that “no structures, including fences, hedges or boundary walls, may be constructed or modified on any parcel to a height which would … obstruct the Puget Sound or park view of any other parcel.”  The appellate court held that this plainly prohibits any view obstruction, no matter how minimal.  The Court pointed out that permitting marginal obstructions would result in the gradual elimination of the views that the covenants are attempting to protect.

Halloween: A Scary Time for Seattle-Area Condos and HOAs (and Their Attorneys)

Each year, some Seattle-area condos and HOAs are compelled to enforce their governing documents in response to Halloween-related activities.  One common type of enforcement action relates to installation of decorations that pose a fire hazard or otherwise violate the governing documents.  Another common type of enforcement action relates to the vandalism and other acts of malicious mischief that sometimes occur on Halloween.  Community associations can impose fines in response to these types of activities if properly adopted and distributed fine schedules are in place.  If fines are contested, then associations should consider obtaining legal guidance. 

My law office is available to help Seattle-area condos and HOAs understand and enforce their governing documents.

Homeowners Association Orders Owner to Remove Tank

Even the parking disputes are bigger in Texas.

Houston attorney Tony Buzbee recently purchased a fully-functional World War II tank for $600,000. The board of his homeowners association was not pleased when Mr. Buzbee proceeded to park that tank outside his home. "It's not violating any ordinance, but it makes them uncomfortable," he said. The board informed Mr. Buzbee that the tank impeded traffic, caused a safety issue, and concerned some of his neighbors.

Mr. Buzbee has indicated that intends to relocate the tank to his East Texas ranch in the near future.  However, he has also stated that the tank will remain where it is for the time being. "The association can ticket it or try to tow it, but the truth is that unless I decide to move it, it ain’t going anywhere."

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."