Washington Court of Appeals Issues Rattlesnake Ruling

A rattlesnake bit Mica Craig while he was shopping at a Walmart outdoor garden center in Clarkston, Washington.  Mr. Craig's subsequent lawsuit against Walmart was dismissed on summary judgment, and he appealed.  The Court of Appeals ruled in favor of Mr. Craig in a recent unpublished opinion.  The Court held that Walmart created a risk of rattlesnake bites and that Walmart owed Mr. Craig a duty of reasonable care to prevent his injury.

The Court's decision is based on a pithy observation: "Rattlesnakes wander." The Court decided that "Walmart's choice to locate an outdoor garden center in its parking lot and adjacent to undeveloped land where rattlesnakes are known to live created a reasonably foreseeable hazard .... that its customers would interact with wandering rattlesnakes hiding among the dirt, plants, and other items for sale .... [and] be bitten by a rattlesnake."  As the Court observed in the concluding paragraph of its opinion: "Most businesses have walls and doors that generally prevent wild animals, including rattlesnakes, from entering." 

Community associations must take steps to ensure the safety of their common areas.  If they fail to do so, then civil liability can result.     

Comply with Fire Alarm Requirements!

It's cold outside, so thoughts turn to fire. As Q13 reported last month, Snohomish County fire officials recently confirmed that fifteen local condominium and apartment buildings are not updated with legally required fire alarms.  The compliance crackdown came about a year after a fire killed a person in their Everett apartment on New Year’s Eve.  The building involved in that tragedy did not have a sprinkler system, which allowed the fire to spread through the attic.  

When community association boards fail to follow fire alarm requirements, they at a minimum subject their associations to compliance actions by local authorities.  Boards also subject their associations, their members, and the other owners to unacceptable risks associated with possible property damage, personal injury, and loss of life. Wise association boards seek to understand and comply with local fire alarm requirements. My office is here to help if your board is unclear about the association's obligations in this area.

Thankful for My Clients!

Happy Thanksgiving to my clients!  I am thankful for you and appreciate your contributions to your communities.  I will continue to represent your legal interests to the very best of my ability!  

FHA Condominium Owner-Occupancy Requirement Lowered in Some Situations

Until recently, condominiums that wanted to obtain FHA lending approval were required to be at least 50% owner-occupied.  HUD announced last month that it is willing to issue FHA approvals to condominiums with owner-occupancy percentages as low as 35% in certain circumstances.  This will allow more condominiums to obtain FHA approval for the benefit of their owners.

The following requirements must be met for a condominium project to be approved if it has an owner-occupancy percentage as low as 35%:

1. Existing project;

2. Use HUD Review and Approval Process option;

3. Financial documents must provide for funding of replacement reserves for capital expenditures and deferred maintenance in an account representing at least 20% of the budget;

4. No more than 10% of the units are delinquent; and

5. Three years of acceptable financial documents.

HUD's letter announcing this change noted that "owner occupants serve to stabilize the financial viability of the projects and are less likely to default on their obligations to ownership associations than non-owner occupants .... Owner occupants, unlike either investors or renters, are incentivized to cooperate with other unit owners to ensure successful operation of the project."  However, HUD decided that substantial reserves, a low percentage of delinquent owners, and evidence of long-term financial stability mitigate the risk associated with lower owner occupancy. 

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."