[WSBARP] HOA "Continuing" Lien and Foreclosure

Thu Nov 17 13:31:41 PST 2016

I only had to argue this once, and my argument was simple, and the judge thought so, too. At least as to 64.38, the HOA Act, the provisions are either mandatory, or they provide, “unless otherwise provided by the governing documents,” or something like that. Each provision, under this analysis, tells you whether the governing documents can vary from it. As to the question of calling a special meeting of the members, there is no “unless otherwise provided” language, as there is in 64.38.030, for example. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John M. Riley III
Sent: Thursday, November 17, 2016 11:08 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] HOA "Continuing" Lien and Foreclosure

For whatever help it may provide you -- I just finished looking at the issue of whether or not the  language of the covenants or RCW 64.38 prevails when they both address a topic.   There is no definitive answer in the case law yet. A  close reading of the cases led me to the conclusion that where both the covenants and the statute cover the exact same topic matter  it is more likely an appellate court will hold that the statute prevails.  My analysis dealt with the number of members necessary to call a special members meeting -- both the statute and the CCR's addressed the topic and had  different rules.   In the cases the courts looked very closely at whether the issue was addressed by the statute.  The case determinations that  the statute did  not address the issue were very important to the courts holding there was  no statutory supremacy.  Based on that method of analysis, and other language in the opinions,  the cases in my opinion lead to the conclusion that where both the covenants and the statute address the topic,  the statute prevails. 

John M. Riley III
Principal | Witherspoon • Kelley
JMR at witherspoonkelley.com | Attorney Profile  <http://www.witherspoonkelley.com/john-riley-1> | vCard <http://www.witherspoonkelley.com/s/jmr.vcf> 

WK

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 Josh Grant
Sent: Thursday, November 17, 2016 10:24 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] HOA "Continuing" Lien and Foreclosure

non-condo

From: John M. Riley III <mailto:JMR at witherspoonkelley.com>  

Sent: Thursday, November 17, 2016 10:14 AM

To: WSBA Real Property Listserv <mailto:wsbarp at lists.wsbarppt.com>  

Subject: Re: [WSBARP] HOA "Continuing" Lien and Foreclosure

Is this a condo or a non condo (i.e. subdivision) set of CC&R's?      

John M. Riley III
Principal | Witherspoon • Kelley
JMR at witherspoonkelley.com | Attorney Profile  <http://www.witherspoonkelley.com/john-riley-1> | vCard <http://www.witherspoonkelley.com/s/jmr.vcf> 

WK

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

Confidentiality Notice: The information contained in this email and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return email, and delete the original message and all copies from your system. Thank you.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Thursday, November 17, 2016 9:19 AM
To: wsbar
Subject: [WSBARP] HOA "Continuing" Lien and Foreclosure

My client is a HOA that recorded a lien for nonpayment of annual assessments for years  in 2013, 2014 and 2015.  Not sure if some of the earlier years’ assessments were paid, but 2015 was definitely not paid.  Now we have 2016 unpaid as well.  I am getting ready to judicially foreclose liens and I thought I would have to record a new lien for the 2016 assessment before I can foreclose based on the 2016 assessment.

My client thinks the following language in the CC&R’s prevents us from having to file a lien each year, once we have filed one of them, or at least once we file one and some portion of it remains unpaid:

    “Any annual... assessments, together with interest, costs, collection costs, and reasonable attorney's fees... shall be a continuing lien on the lot against which such assessment is made... The board shall have the right to publicly record a lien against title to a Lot evidencing the existence of this continuing lien.... The Board of Directors... may sue the Lot Owner personally obligated to pay and/or foreclose a lien against the Lot in the same manner as a mortgage of real property....”

    Also, the lien itself states:  “Principal Amount to Date for Which the Is [sic] Lien Claimed:  $15000 including:  and at this point the 2013, 2014, and 2015 lien amounts are listed] and then it reads “Plus continuing annual dues”.

Another issue is that the lien recites an added amount: “$189.00 Late Fees owing on Annual Dues”, however, I don’t see any provision for charging late fees in the CC&R’s.

Anyone have an opinion on whether we can tack on the 2016 assessment to our lien foreclosure action without recording a new lien? and on whether we can require late fees be paid?

Josh

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734

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