[WSBARP] HOA "jurisdiction" question (Pre-RCW 64.38)

[Michael Kelly]

Hello all,

A large lot subdivision recorded in the 1970’s depicts “private roads for ingress, egress, utilities & drainage” with no other mention of joint maintenance obligations or association membership.

In the early 1980’s, several of the owners of lots in the LL subdivision formed a nonprofit purporting to be an HOA that now attempts to assess the 50 or so lots located within the original LL subdivision. Some of those original lots of have been subsequently subdivided into smaller lots via short plats.

There is no mention of an HOA on title or in legal descriptions of any of these lots. There are no maintenance or assessment covenants recorded against the properties. The only thing on title is the original LL subdivision creating the private roadway easements.

It’s unclear how many of the owners pay assessments. This may not be relevant to my question, but Clients own property within the LL subdivision and understand several owners have not paid assessments for decades. Clients are also skeptical that road maintenance occurs with any regularity or in such a way that benefits all lots.

I understand that absent joint maintenance agreements, the responsibility for the maintenance and repair of such easements should fall to those who benefit from the easements. See Donner v. Blue, 187 Wash. App. 51, 56 (Wash. Ct. App. 2015).

My question(s):

Can the “HOA” assess these lots? Does its authority come from RCW 64.38 as an HOA? If so, I presume the ability to lien and foreclose would follow. (I suppose you can always “assess” a lot, the more appropriate question may be “are lot owners obligated to pay these general assessments?”)

Or does the HOA’s authority somehow stem from common law related to the responsibility for maintenance and repair of easements?

I am trying to reconcile the need for maintenance and a mechanism for all owners to pay their fair share (per common law, if this isn’t a true HOA situation) versus the rights of an HOA to make and collect general assessments if there are no covenants or obligations to pay these assessments to an HOA encumbering these lots.

It seems to me if the general assessments were not measured in such a way that directly reflect each lot owners benefit from an easement, and were for costs not directly attributable to maintenance, they would be in derogation of common law.

Sorry for the bit of a ramble… any thoughts are much appreciated.


Thank you,

Michael Kelly | Attorney
Direct: 360-529-0808
mike at soundlawfirm.com<mailto:mike at soundlawfirm.com>

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PO Box 64236 | Tacoma, WA 98464
www.soundlawfirm.com<http://www.soundlawfirm.com>

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