[WSBARP] Enforcing Amendments to CC & R's

Thu Nov 5 11:07:05 PST 2020

First, I want to thank everyone who has responded.  Your comments are very helpful.  In response to Joshua’s question, in reading Wilkinson v. Chiwawa Communities Association, 180 Wash.2d 241, 327 P.3d 614 (2014), it may not be enforceable.  The case talks in terms of changing existing covenants versus adding completely new ones and whether they are consistent with the general plan of development.  You need to look at the restrictions before the changes.

Like Rob said, read Wilkinson about 10 times, it might make sense.  The next step if to go to Casemaker and see what newer cases have cited it.

Jeff Davis

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Josh Grant
Sent: Thursday, November 5, 2020 9:43 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Enforcing Amendments to CC & R's

So I’m living in a non-condominimum HOA which CC&R’s said it only took 50% to amend.   They got over 50% last summer to restrict Airbnb’s (no leases less than 30 days).  Is that likely to fly?  No one asked me or any other attorney for legal advice, or I would have dug into it....

Josh

Joshua F. Grant

P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Patrick McDonald 

Sent: Thursday, November 05, 2020 8:46 AM

To: WSBA Real Property Listserv ; jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com>  

Subject: Re: [WSBARP] Enforcing Amendments to CC & R's

That case is Filmore LLLP v. Unit Owners Ass’n of Centre Pointe Condo., and it only applies to certain condominiums. The court ruled that 90% owner approval was required for amendments that changed the uses to which units were restricted based on the court’s interpretation of the particular condominium declaration at issue. 

Patrick McDonald

_______________________

Pody & McDonald, PLLC

1200 Fifth Avenue, Suite 1410

Seattle, WA 98101-3106

T: 206-467-1559

F: 206-467-4489

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 Craig Gourley
Sent: November 4, 2020 5:18 PM
To: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> ; WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Enforcing Amendments to CC & R's

I recall a court case a few years back that said a change in use requires a much larger percentage (100% ???) Regardless of what the declaration says. Sorry I don't have the cite and who knows maybe it has been overruled by now. 

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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 Patrick McDonald <pmcdonald at podymcdonaldlaw.com <mailto:pmcdonald at podymcdonaldlaw.com> >
Sent: Wednesday, November 4, 2020 4:50:00 PM
To: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com>  <jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> >; WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Enforcing Amendments to CC & R's 

If you are talking about a non-condominium homeowners association, usually the covenants will provide that they can be amended upon approval of a certain percentage owners. You’d think that would be the end of the analysis, but you may still need 100% approval based on the Supreme Court’s decision in Wilkson v. Chiwawa in 2014. It’s a very fact-specific and subjective analysis. 

If the covenants don’t have an amendment provision, then you would need 100% approval. 

Patrick McDonald

_______________________

Pody & McDonald, PLLC

1200 Fifth Avenue, Suite 1410

Seattle, WA 98101-3106

T: 206-467-1559

F: 206-467-4489

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 Jeff Davis
Sent: November 4, 2020 3:11 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Enforcing Amendments to CC & R's

Listmates:

Client, HOA, wants to amend CC & R’s.  However, before spending the money, the Board wants to know are amendments enforceable?  This is always a tricky question.  Had one case where HOA wanted to ban Airbnb rentals.  However a home owner, within the association, said they bought the house as an investment and a source for retirement funds.  They would not agree with any amendment that stopped them from leasing their home.  I know there are cases on rentals, both short term and long term that deal with this type of amendment.  I also know amendments that deal with tree/bush height are causes for big bonfires with the board being burned in effigy.  Are there cases out there that acknowledge that most CC & R’s have provision for amendment, and everyone who buys into the area knows that and are subject to it.  Where is the line drawn?  What have been your experiences with amending CC & R’s and HOA Bylaws for that matter.

Jeff Davis

W. Jeff Davis, Esq.

BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129 
Fax No.: (360) 683.1258 
email: info at bellanddavispllc.com <mailto:info at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

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