[WSBARP] amending restrictive covenants - statute?
Rob Wilson-Hoss
rob at hctc.com
Fri May 31 09:27:24 PDT 2019
Josh,
1. the language about automatic extensions is an anachronism that has essentially no meaning. It does confuse people, though.
2. the case law is that you have to follow the amendment procedures:
In order for an amendment to be valid, it must be adopted according to the procedures set up in the covenants and it must be consistent with the general plan of the development.
Ebel v. Fairwood Park II Homeowners' Ass'n, 136 Wash. App. 787, 792–93 (2007)
Amendments to covenants are permissible. Ebel v. Fairwood Park II Homeowners' Ass'n, 136 Wash.App. 787, 792 (2007). However, in order for an amendment to be valid, the amendment must be adopted according to the procedures set up in the covenants and it must be consistent with the general plan of the development.
Halme v. Walsh, 192 Wash. App. 893, 906 (2016)
3. It is in fact amended if the procedure is followed, the amendment applies to everyone, and any judge with experience will say, look, you bought knowing the covenants could be amended by a majority, what is it about that you don't understand?
But, again, amendments always have to meet the case law tests, see Wikinson v. Chiwawa Communities. Not only must it be consistent with the general plan of the development (no gas stations in a residential-restricted neighborhood, for example), there is the additional burden test, and the reasonably related to an existing covenant test. So if a new buyer is not happy because there is a new unanticipated burden amended into the covenants, the amendment may not be valid even if it followed the proper process.
Rob
Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com
rob at hctc.com
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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 3:30 PM
To: 'WSBA Real Property Listserv'
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
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com <wlmailhtml:www.hossandwilsonhoss.com>
rob at hctc.com
This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited. If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments. Thank you.
This office does debt collection and this e-mail may be an attempt to collect a debt, Any information obtained will be used for that purpose. To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.
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> 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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