[WSBARP] CCR and neighboring property

Fri Jan 23 11:18:43 PST 2015

Marcus,
    The covenants fix the relationship of the parties. Unless otherwise specified, the only people who can enforce the covenants are those people who are a party(by buying land burdened by the covenants), or successors. Which means it usually has to be someone with an ownership interest, an HOA presumably, and sometimes the developer under a clause reserving such a right. But any time I have ever seen such a reservation, it goes away at some point in time for the simple reason that while the developer owns lots, it wants some control, but after that, the developer wants to get away from any of the problems that might arise.
    Some covenants also have some language that reserves rights to the developer to add things at a later date. As an example, some times a developer will want to do things in phases, and wants the ability to eventually bring them all together.
    So you really have to look at the covenant language carefully. Absent a reservation of the right to do what the developer is doing, the developer can't do it. The tricky part comes in to play if the developer reserved the right, to a certain point, to amend the covenants at will. Then you get in to the cases as to what amendments are allowed. Your starting point is Wilkinson v. Chiwawa Communities Association, 180 Wn.2d 241, 327 P.3d 614(2014).  

Stephen Whitehouse
Whitehouse & Nichols, LLP
Attorneys at Law
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com

-----Original Message-----
From: John M. Riley III <JMR at witherspoonkelley.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Sent: Fri, Jan 23, 2015 9:53 am
Subject: Re: [WSBARP] CCR and neighboring property

There are several covenants case near to or on point.  In one a developer tried to  allow a neighboring subdivision to use the roads in his subdivision.  In another folks who had no interest in the land subject to the covenants tried to enforce them.    Good luck.

John Riley

John M. Riley, III

Principal | Witherspoon • Kelley

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422 W. Riverside Ave, Ste 1100
Spokane, WA 99201 
(509) 624-5265 (office)
(509) 458-2728 (fax)
witherspoonkelley.com 

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com]On Behalf Of Marcus Fry
Sent: Thursday, January 22, 2015 6:15 PM
To: 'wsbarp at lists.wsbarppt.com'
Subject: [WSBARP] CCR and neighboring property

This is going back to law school and real property 101.  I have a situation where there is a development that has CCRs in place (call primary development).  The owners in that development want to grant to a neighboring development the right to enforce the CCRs, but not be bound by them.  First blush, I think the neighboring property needs to become part of the CCRs (could be specifically exempted out of the use restrictions) in order to be effective.  I don’t think a deed/contract from the primary development to the neighboring development granting such enforcement rights would be sufficient.

Anyone encounter such a situation?

Thanks in advance!

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
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