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

Thu Jan 12 16:23:36 PST 2017

Nick,

Well, yes, some experience, and some thoughts, but they won't answer your questions.  There are at least three threads of authorities. One is the statute, 64.38.020, which says a homeowners' association can do pretty much anything unless otherwise provided in the governing documents. So, unless your governing documents say you can't, you can. 

Then there is Wilkinson v. Chiwawa Communities, which essentially boils down to, in most circumstances, you can't add an additional burden to a lot owner/member if there is no notice of the burden in the recorded running covenants. It gets there by saying that the general plan of development only included the burdens that are explicit; and therefore all of the former general plan of development cases support its conclusion. Right. I don't think that the "general" part of general plan of development is being honored in that argument.  But there are plenty of exceptions for such things as ratification by estoppel and the statute of limitations and so on. Most think that this not only applies to covenant amendments, the context of that case, but also, you can't get additional burdens in through the back door of rules and regulations if you can't get them in the front door of covenant amendments. 

Then there are the correlated document cases which say that a nonprofit corporation's documents, in the HOA context in particular, are correlated documents and they all work together, which also need to be taken into account. Take a look at   <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1956123042&pubNum=661&originatingDoc=I119f8d61c43711e1b66bbd5332e2d275&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> Rodruck v. Sand Point Maint. Comm'n, 48 Wash.2d 565, 577, (1956); Shafer v. Sandy Hook Yacht Club Estates, 76 Wash. App. 267, 273 (1994); and Lake Limerick v. Hunt, 120 Wash. App. 246 (2004). And consider what they have to say about interpretation of covenants, and Riss v. Angel, as well.

The "no additional burden" test is simply totally inconsistent with the statute and other caselaw doctrines. And it sets up all sorts of unfortunate consequences.  The dissent in Wilkinson v. Chiwawa has that exactly right.  But, it is what it is. Some day the Supreme Court is going to have to look RCW 64.38.020 directly in the eye and deal with the fact that the Legislature said what it said, and this is really the province of the Legislature. 

When the Supreme Court will go from one small phrase in a long set of covenants that says that for rent signs can only be up to six square feet; to a conclusion that this meant that the original drafters meant that there could be no other restrictions on renting whatsoever, as a matter of law and therefore regardless of any other facts; we are in Neverland. No one who deals regularly with restrictive covenants drafted in the 60s and 70s, in particular, many obviously without the help of lawyers, often by real estate developers themselves, would ever dream of drawing that conclusion. Find one of those developers and ask him or her what his or her intentions were. The only answer I have ever had is, well, we didn't think of that, or something similar. And that includes once from a lawyer who was the developer and did his own documents. 

Boy howdy, I can get cranked up about this, no? It is hard to advise clients, given this state of affairs, as your question illustrates. 

Rob

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

www.hossandwilson-hoss.com
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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

 <mailto:nick at gnbergh.com> nick at gnbergh.com

 <http://www.gnbergh.com/> www.gnbergh.com

From: 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> on behalf of Rob Rowley <rob at rowleylegal.com>
Reply-To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Date: Thursday, January 12, 2017 at 11:46 AM
To: WSBA RPPT <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?

Robert R. Rowley | Attorney at Law

7 S. Howard St, Suite 218

Spokane, WA  99201

Telephone: (509) 252-5074

Mobile: (509) 994-1143

Facsimile: (509) 928-3084

Email:  <mailto:rob at rowleylegal.com> rob at rowleylegal.com

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Practice concentrated on business, real estate and general legal matters in Washington and Idaho.

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