San Juan Island HOA Dispute Results in Epic Appellate Court Opinion

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 The Washington Court of Appeals began its ninety-six page unpublished opinion regarding this "saga" by noting that "the record reveals a level of animosity between Stevens and his neighbors and incivility between some of the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. 

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. 

Washington Court of Appeals Rules in Favor of Tree Nuisance Claim

A property owner brought a nuisance action against her neighbors because the branches of a cedar tree on their property extended over her property, dropped leaves and needles on it, and threatened to damage her home.  The Court of Appeals ruled that the owner presented enough evidence in support of her claim to defeat her neighbors' motion to summarily dismiss it without a trial.  

RCW 7.48.010 defines an actionable nuisance as "whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property." The Court noted that tree branches extending over adjoining land can constitute a nuisance, but it pointed out that damages must be proved in order to support a legal claim. In this case, the plaintiff presented evidence that the tree branches shed profusely on her yard and interfered with her use and enjoyment of the property. She also presented evidence that the size and location of the tree's branches posed an increasing danger to her home. As a result, the Court ruled that her nuisance claim must be allowed to proceed to trial.

Community Association Presentation for Washington Secretary of State's Office

I will be leading an electronic presentation concerning community associations for the Washington Secretary of State's Office on June 15 at 10:00 a.m.  I will provide an overview of the legal issues that affect those associations, including the scope of the Washington Uniform Common Interest Ownership Act ("WUCIOA") and coronavirus-related concerns.

Washington Court of Appeals Prevents Covenant Enforcement Due to Delay

The Washington Court of Appeals recently decided in an unpublished opinion that the legal doctrine of laches prevented an owner of real property from obtaining relief based on a claim that the owner of neighboring property violated covenants governing both properties.  Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them. It is in effect neglect for an unreasonable length of time under circumstances permitting diligence to do what in law should have been done.  

The legal elements of laches are inexcusable delay and prejudice to the other party from such delay. The plaintiff in this case waited twenty years after his neighbor's home and barn were built before asserting that they violated protective covenants. The Court ruled that this delay and the resulting harm to his neighbor if his claim were allowed to prevail mandated dismissal.