[WSBARP] amending restrictive covenants - statute?

Fri May 31 10:06:01 PDT 2019

To what extent were those cases modified by new HOAs governed by RCW 64.90 and specifically RCW 64.90.285 (6) and the language in that subsection which states that such an amendment must provide reasonable protection for a use permitted at time amendment is adopted. For example if amendment was adopted restricting leasing rights or prohibiting B and Bs in a residential subdivision where local ordinances were silent or permitted the same.

Bryce H. Dille | Attorney at Law
Dille Law, PLLC
P: 360-350-0270 | F: 844-210-4503
2010 Caton Way SW, Suite 101
Olympia, Washington 98502
www.dillelaw.com<http://www.dillelaw.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 <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Rob Wilson-Hoss
Sent: Friday, May 31, 2019 9:27 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] amending restrictive covenants - statute?

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<www.hossandwilsonhoss.com>
rob at hctc.com<mailto: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> [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<mailto: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> [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
[cid:AEF18ED8-6AEE-403C-99E7-30A379E62D84 at local]
1800 Cooper Point RD SW NO. 8<x-apple-data-detectors://1/0>  |<x-apple-data-detectors://1/0>  Olympia, WA 98502<x-apple-data-detectors://1/0>
Telephone 360.352.1970<tel:360.352.1970>  |  Fax 360.357.0844<tel:360.357.0844> |  www.jaglaw.net<http://www.jaglaw.net/>
jay at jaglaw.net<mailto:jay at jaglaw.net>

Nothing contained herein should be construed as legal advice.
The purpose of this email is to transmit a message or document.
Should you not be the intended recipient of this email message,
please reply advising of the mistake and then delete this message
from your computer. Should you have any questions,
please call the Sender at 360-352-1970<tel:360-352-1970>.

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
<advocates[1].png>
P. O. Box 619
Wilbur, WA 99185
509 647 5578
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp
________________________________
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp

________________________________
[Image removed by sender. AVG logo]<https://www.avg.com/internet-security>

This email has been checked for viruses by AVG antivirus software.
www.avg.com<https://www.avg.com/internet-security>

________________________________
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20190531/369e71bb/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 7674 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20190531/369e71bb/image001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 22098 bytes
Desc: image002.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20190531/369e71bb/image002.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 823 bytes
Desc: image003.jpg
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20190531/369e71bb/image003.jpg>