[WSBARP] Homeowner non-compliant with minimal CCRS - need complaint for injunctive relief for cleanup and access

Thu Jan 12 15:54:52 PST 2017

Your comments are spot on, Nick.  If you can't amend the covenants to add provisions on new items without 100% approval, it is even less likely you could do so by exercise of rulemaking authority, whether or not via the statute or under, if in the CCR's, provisions authorizing the Board to create and enforce rules and regulations.

John Riley

John M. Riley III
Principal | Witherspoon • Kelley
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Nick Bergh
Sent: Thursday, January 12, 2017 3:24 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Homeowner non-compliant with minimal CCRS - need complaint for injunctive relief for cleanup and access

Listmates,

On a related note, I have an HOA client also with older covenants, which provide for assessment liens, but does not address enforcement of building and behavior restrictions beyond saying that any member can enforce.  While it has a provision addressing attorney fees, that provision applies only to non-payment of assessments.

I have prepared enforcement rules and a fine schedule under authority of RCW  64.38.020(11). I originally thought to have the fines treated as assessments, and thus lienable, but am concerned that this approach will run afoul of the cases holding that you can’t create new covenant rules or obligations that aren’t addressed in the original covenants. I also thought to provide for attorney fees to the prevailing party in any fine/enforcement proceedings, but am concerned about this approach for the same reason, as well as the rubric allowing awards of attorney fees only where authorized by a contract, statute or recognized equitable grounds.

Anyone with any experience or thoughts on these issues?

Thanks

________________________
Nick Bergh
Law Office of G N Bergh
2006 South Post Street
Spokane WA 99203-2049
ph 509-624-4295  | fx 509-344-1844
nick at gnbergh.com<mailto:nick at gnbergh.com>
www.gnbergh.com<http://www.gnbergh.com/>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Patrick McDonald
Sent: Thursday, January 12, 2017 12:21 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Homeowner non-compliant with minimal CCRS - need complaint for injunctive relief for cleanup and access

The association may want to first consider assessing fines for violations of the covenants. If the covenants don’t address the issue, what about adopting rules and regulations prohibiting the unwanted condition and a fine schedule that provides for ongoing fines until the condition is abated? Unpaid fines are an assessment for which the association would have a lien (provided it followed whatever procedures are required in the CCRs to establish/perfect the lien, if any). The covenants likely allow for a recovery of attorney fees and costs for foreclosing the lien whereas they might not for seeking injunctive relief.

Patrick McDonald
_________________________
Pody & McDonald, PLLC
1200 Fifth Avenue, Suite 1410
Seattle, WA 98101-3106
T: 206-467-1559
F: 206-467-4489

From: <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of Rob Rowley <rob at rowleylegal.com<mailto:rob at rowleylegal.com>>
Reply-To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Date: Thursday, January 12, 2017 at 11:46 AM
To: WSBA RPPT <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Homeowner non-compliant with minimal CCRS - need complaint for injunctive relief for cleanup and access

I need a template/draft complaint for injunctive relief by a homeowners association against one of its homeowners.  Older CC&Rs are not that helpful.  Homeowner has a history of allowing large amounts of trash, garbage and numerous vehicles to be located on the outside of his house which is in a very expensive waterfront neighborhood.

CCR&s allow for filing of a lien for monetary defaults.  Owner is not in default of money obligations.

Need something that allows for injunctive relief which would allow the homeowners association to physically enter the property to clean it up and either have a judgment or a lien.  Kind of like what happens with city code enforcement with a recalcitrant homeowner with lots of trash.

I represent numerous homeowners associations and typically advise to file the lien and wait till the homeowner eventually either sells or refinances to get paid. Never injunctive relief with poor CCRs.

Thoughts?

[cid:image001.jpg at 01D26CEC.24F89C00]Robert R. Rowley | Attorney at Law
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Practice concentrated on business, real estate and general legal matters in Washington and Idaho.

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