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The Court of Appeals initially pointed out in its unpublished opinion that the Washington Growth Management Act bars adverse possession claims against homeowners associations' common areas.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."

Who Selects and Communicates With the Association's or Community's Attorney?

Each board of a Washington state condominium association, homeowners association, or common interest community has the right to directly select and communicate with the association's or community's attorney. Each such board should consider exercising (rather than delegating) that right if it is not currently doing so. The attorney-client relationship is between the attorney and the association or community, and it is best promoted through direct communication between them. Such communication should be considered whenever one or more potential legal issues have been identified by a board member, a property manager, or an owner. 

Washington Court of Appeals Affirms HOA's Covenant Amendment

The Washington Court of Appeals recently affirmed a trial court's decision that a homeowners association had the authority to adopt an amendment to the covenants governing the property without a unanimous vote of the owners. The Court noted that an express reservation of power authorizing less than 100 percent of property owners within a subdivision to adopt new restrictions (as opposed to changing existing covenants) respecting the use of privately owned property is valid if such power is exercised in a reasonable manner consistent with the general plan of the development. After reviewing the association's covenants, the Court ruled that the plaintiffs failed to show that any portion of the amendment at issue was inconsistent with the general development plan, imposed unreasonable disparate impacts on their property, or were otherwise invalid.