[WSBARP] 3 story house meets 2 story CCR restriction

[marc holmeslawgroup.com]

Thank you all for the detailed responses both on and off list.  The CCRs are from the 40s and did create the functional equivalent of an Architectural Control Committee but our working assumption is that it and the HOA generally have been defunct for many years.  We're trying to confirm this but it's not the end of the story either way as the CCRs very clearly give all lot owners the right to enforce the CCRs in a private action.

Some asked about the stories of the house in question.  The third floor contains multiple bedrooms and bathrooms and a court order to remove it would be devastating to the property.  I haven't visited the site yet but from the listing photos it seems pretty clear that the 1st floor is built on grade with very little if not zero below grade.  The MLS listing calls it a "Multi-Level" home and the available options they had to choose from were 2 story with basement, tri-level, or multi-level.
Arguing it is not a 3 story house seems ill advised to say the least.

As for the 22T, yes we have one and have given notice of disapproval.  Now we're trying to figure out if there's a reasonable way forward or if it's time to take our ball and go find another home.  Unfortunately, it appears to be the latter.




Marc Holmes
Holmes Law Group PLLC
2303 W. Commodore Way, # 306
Seattle WA 98199
HolmesLawGroup.com<http://holmeslawgroup.com/>
marc at holmeslawgroup.com<mailto:marc at holmeslawgroup.com>
Ofc: 206-357-4224
Cell: 206-849-0853

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of John McCrady
Sent: Tuesday, March 20, 2018 1:01 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] 3 story house meets 2 story CCR restriction

Beware of Item 4 of the Exclusions:

Risks:
a. that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records;
b. that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date;
c. that result in no loss to You; or
d. that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28.
I would probably want to request affirmative coverage against that matter.

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.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 marc holmeslawgroup.com
Sent: Tuesday, March 20, 2018 11:27 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Cc: kim holmeslawgroup.com <kim at holmeslawgroup.com<mailto: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<http://holmeslawgroup.com/>
marc at holmeslawgroup.com<mailto:marc at holmeslawgroup.com>
Ofc: 206-357-4224
Cell: 206-849-0853

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