[WSBARP] 3 story house meets 2 story CCR restriction

[marc holmeslawgroup.com]

It's a decent size older subdivision and I'm aware of two other homes that may have a third floor, both built in the past year.   There might be others but I think it's unlikely there are any that have been there for a long while.



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 Bryce Dille
Sent: Tuesday, March 20, 2018 3:44 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] 3 story house meets 2 story CCR restriction

How many other homes are there in the area governed by the CC and Rs that are 3 story if there are a number then the restriction may be unenforceable if no enforcement action was taken in the past There are several cases on point I don't have the cites right now but I think they are in the latest Real Property Practice volumes.



[cid:image001.jpg at 01D1AB8F.1C8227E0]

Bryce H. Dille | Attorney at Law

P: 253.848.3513| F: 253.845.4941
317 South Meridian
Puyallup, WA 98371
bryced at cdb-law.com<mailto:bryced at cdb-law.com>
www.cdb-law.com<http://www.cdb-law.com/>





This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s).  If this matter is transmitted to you in error, please notify the sender immediately.

Business Entity Creation and Management
Business, Government and Tax Law
Real Estate and Land Use, Residential, Commercial and Condominium Development
Real Estate and Commercial Transactions & Closings, Including Performing Services as IRS Section 1031 Exchange Facilitator
Estate Planning, including Wills and Trusts, and Probate Administration
Representation Homeowners/Condominium Association Real Estate Developments
Real Property Foreclosures and Forfeitures






















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 2:45 PM
To: WSBA Real Property Listserv
Cc: kim walawrealty.com
Subject: Re: [WSBARP] 3 story house meets 2 story CCR restriction

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<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto: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<mailto: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:
a.       Any obligation to perform maintenance or repair on the Land; or
b.       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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20180320/ea431746/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 4039 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20180320/ea431746/image001.jpg>