[WSBARP] 3 story house meets 2 story CCR restriction

[Paul Neumiller]

I worked with a HOA who had to sue an owner for building a residence too tall.  Because I sent a letter to the owner during the construction phase warning him about the problem, he was not able to later enter evidence of his lack of knowledge and his financial hardship in removing the excessive height.  The court required that he remove the excessive height.  It was an expensive gamble by the owner who thought the HOA would not have the stomach for litigation and back down.

I'd go to the HOA and see if they granted a waiver of the CC&Rs.  If the Architectural Review Committee (if there is one) knowingly allowed the extra floor, your client would be on firmer footing (no pun intended).


[cid:image002.jpg at 01D3C043.FDE4ABC0]



From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of marc holmeslawgroup.com
Sent: Tuesday, March 20, 2018 11:27 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Cc: kim holmeslawgroup.com <kim at holmeslawgroup.com>
Subject: [WSBARP] 3 story house meets 2 story CCR restriction

We have a client set to buy a brand new 3 story house and, lo and behold, the builder didn't notice or ignored a CCR restriction limiting homes to no more than 2 stories.  Title company says the ALTA Homeowner's policy covers this and points to a "covered risk" provision that reads:

You are forced to correct or remove an existing violation of any covenant, condition or restriction affecting the Land, even if the covenant, condition or restriction is excepted in Schedule B.  However, You are not covered for any violation that relates to:

  1.  Any obligation to perform maintenance or repair on the Land; or
  2.  Environmental protection of any kind, including hazardous or toxic conditions or substances.
unless there is a notice recorded in the Public records, describing any part of the Land, claiming a violation exists.  Our liability for this Covered Risk is limited to the extent of the violation stated in that notice.

We're not aware of any publicly recorded notice of that the 3rd story is a violation.  Does this seem like adequate protection for the buyer or a recipe for disaster?



Marc Holmes
Holmes Law Group PLLC
2303 W. Commodore Way, # 306
Seattle WA 98199
HolmesLawGroup.com<https://eur01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fholmeslawgroup.com%2F&data=02%7C01%7C%7C3801b5b6e5634e244c5e08d58e9128fa%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636571676465115868&sdata=8sKji1tirrIuOkOIFS9qzQGNwQ%2FA5ne1Afu3igKNeG0%3D&reserved=0>
marc at holmeslawgroup.com<mailto:marc at holmeslawgroup.com>
Ofc: 206-357-4224
Cell: 206-849-0853

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