[WSBARP] Enforcement of Deed Restriction - Height of Single Family Residence

Thu Oct 20 09:57:16 PDT 2016

On the front page of the Seattle Post-Intelligencer, Thursday, October 16, 2008, there was an article entitled “The roof with a view: The sight of the Sound returns, shingle by court-ordered shingle”.  Just  below the fold, there was a picture of the roof being removed from a new West Seattle house and an article explaining that the land with the offending structure was burdened with a covenant protecting views.  It’s an interesting article and well worth the read!

Gretchen Valentine
VP / Pacific NW Regional Underwriting Counsel
Title Resources Guaranty Company
11201 SE 8th Street, Suite 200
Bellevue, WA 98004
425-896-3836 (direct)
425-451-7301 (office)
206-962-7744 (cell)
Gretchen.Valentine at TitleResources.com<mailto:Gretchen.Valentine at TitleResources.com>

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul
Sent: Thursday, October 20, 2016 9:20 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Enforcement of Deed Restriction - Height of Single Family Residence

There is a line of cases say that if the adverse party knew of the height violation but proceeded anyway, the adverse party is proceeding in “bad faith” and is precluded from asking the court to weigh the relative hardships between your client losing his/her view and the adverse party having to reduce the height of their house after completion.  A portion of my letter stated:

“Please be advised that the maximum height of your new residence is fifteen feet from the natural grade.  This information is consistent with the information that has been provided to you by the Association many times.  The Association can only assume that if you proceed with the construction of the residence that it is your belief that it is better to “ask for forgiveness than to ask for permission.”  To the extent that your new residence exceeds 15 feet, the Association will bring an enforcement action in XXX County Superior Court to require the removal of the portion of the residence that exceeds fifteen feet.  It is the Association’s intent to submit this letter to the Court in the event of a lawsuit.  This letter will then constitute part of the record to demonstrate that you were well aware of the consequences of your actions and that you chose to proceed in bad faith anyway.”

The guy still built his house and I referred the HOA to a litigator in my office.  The letter was a prominent part of the case.  After the announcing the judge’s decision, the judge literally turned to the guy and said, “Well Mr. XXXX, you gambled and you lost.”

[cid:image002.jpg at 01D22AB7.E31B13B0]

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Jason Powell
Sent: Thursday, October 20, 2016 7:28 AM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Enforcement of Deed Restriction - Height of Single Family Residence

Listmates,

Potential client lives on the edge of a bluff in Spokane County.  Adverse party is building a home on a lot below the edge of the bluff and right in front of the potential client.  Lot on which the adverse party is building the home contains a deed restriction regarding the height of the home.  Potential client believes that the adverse party’s home is several feet over of the height restriction, based on the fact that the home next to the adverse party’s lot is just under the height restriction and the adverse party’s home is significantly higher than the neighbors.    Because there are two additional lots (which are also subject to the same deed restriction) next to the adverse party’s lot that will undergo construction in the near future, potential client is concerned about the precedent created by adverse party’s home exceeding the height restriction.

Curious to know if anyone has dealt with a similar situation and thoughts on what the best option might be for the potential client.

Thanks,
Jason

__________________________________________________
Jason M. Powell
Bjornson Jones Mungas, PLLC
601 W. Main Ave., Suite 900, Spokane, Washington 99201
Direct: 509.981.4423
Email: jason at bjornsonlaw.com<mailto:jason at bjornsonlaw.com> |Website: www.bjornsonlaw.com<http://www.bjornsonlaw.com/>
Linkedin: https://www.linkedin.com/in/jason-powell-6a6208a

Missoula Office:
2809 Great Northern Loop, Suite 100, Missoula, Montana  59808
Reception: 406.721.8896 | Fax: 406.541.8037
CONFIDENTIALITY NOTICE:  The information contained in this email message may be privileged or confidential information and is intended only for the use of the individual or entity named above.  If you have received this communication in error, please notify us immediately by telephone and delete the message from your system.

________________________________
This email has been scanned for email related threats and delivered safely by Mimecast.
For more information please visit http://www.mimecast.com
________________________________

_____________________________________________________________________________
This electronic mail message transmission contains information which may be Confidential and/or Privileged. The information is intended to be for the sole use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or other use of the contents of this transmission is strictly prohibited.

If you have received this electronic mail transmission in error, please notify the sender immediately.
_____________________________________________________________________________
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20161020/a205eb28/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 7402 bytes
Desc: image002.jpg
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20161020/a205eb28/image002.jpg>