[WSBARP] amending restrictive covenants - statute?

Thu May 30 15:58:28 PDT 2019

I agree with Rob to be careful about that Chiwawa case.

The CCRs in the Chiwawa case authorized a majority of the owners “to change these protective restrictions and covenants in whole or in part.”

The case gives a good discussion of what can and cannot be done via an “amendment” when the CCRs contain the verbiage you are dealing with.

Eric J. Lanza, J.D.

[cid:image003.png at 01D51700.84BA7A30]

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Josh Grant
Sent: Thursday, May 30, 2019 3:30 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] amending restrictive covenants - statute?

Thanks Rob
I have a case where some very simple, old  CC&R’s have only one sentence about amendments.  It says: The CC&R’s “automatically extended for successive periods of ten (10) years, unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.”

That was probably intended only to allow the CC&R’s to be in perpetuity if 50% sign a new covenant.  However, on its face that seems to set up a mere 50%+ to amend covenants.  With nothing more, my first thought was that any amendment would apply to signatories of it but not to opponents of the new covenant until those lots are sold.  If I bought a lot, thoroughly read all the CC&R’s and 2 weeks later, without notice to me, 51% of the land owners (or even one owner with 51% of the lots) signed a new set of CC&R’s, I wouldn’t be happy.

Anyone think that given the above poorly drafted CC&R’s that it would not be immediately enforceable against non-signing lot owners?

Josh
Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Rob Wilson-Hoss<mailto:rob at hctc.com>
Sent: Thursday, May 30, 2019 1:58 PM
To: 'WSBA Real Property Listserv'<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] amending restrictive covenants - statute?

The only other thing to add is that the new Common Interest Communities Act does allow for amendments in such circumstances, it does not apply in this regard to pre-existing HOAs, but if a pre-existing HOA wants to, it can vote to have the new Act apply, and then amend pursuant to the new Act. Take a look at 64.90.095.

My general take is that one would have to be certifiably insane to want the new Act to apply to small pre-existing HOAs, but there may be reasons for it. Such as, you can then amend your covenants when you couldn't otherwise.

And remember, even if you do comply with all of that, and you amend, the amendment is likely going to have to pass case law tests about additional burdens and so on, presumably. See, my favorite target, Wilkinson v. Chiwawa Communities.

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Thursday, May 30, 2019 1:04 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] amending restrictive covenants - statute?

Thanks Jay.

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Jay Goldstein<mailto:jay at jaglaw.net>
Sent: Thursday, May 30, 2019 12:43 PM
To: WSBA Real Property Listserv<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] amending restrictive covenants - statute?

I missed this earlier query—if no amendment procedure in the CCRs, then generally requires 100% approval to pass.

Jay A. Goldstein
Of Counsel
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On May 30, 2019, at 11:07 AM, Josh Grant <jgrant at accima.com<mailto:jgrant at accima.com>> wrote:
My client is an HOA with very simple covenants, which don’t say anything about amending them, in particular they say nothing about the percentage of lot owners who need to agree to an amended covenant.  Is there a statute that we go to as a default?
Thanks
Josh
Joshua F. Grant
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P. O. Box 619
Wilbur, WA 99185
509 647 5578
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