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

Thu May 19 15:12:33 PDT 2022

Hello Michael,

I don’t want to say that I have any legal authority to point to on this,
other than to say without properly recorded protective covenants of some
sort, the only other way I believe an HOA can have authority to act on
behalf of all lots and homeowners is if there was a contractual basis
between all homeowners when the HOA was formed that they all agreed to be
held accountable to the HOA for assessments. If that exists, I would then
look to HOA Bylaws, rules and regulations, if any. In my mind (which can be
a scarry place at times) the only homeowners that can be held accountable
are the ones that have agreed to be held accountable. I would also
recommend that the HOA record something that purports to hold homeowners
accountable so it is picked up by title searches when a home or lot is sold
in the future. Or all homeowners agree to some new CC&Rs going forward that
are recorded. I don’t believe a mention of private roads in the recorded
subdivision map gets you to an HOA that has authority to assess every lot;
at least I sure wouldn’t want to be litigating that question.

That’s my 2 cents which is worth less today than even yesterday…………

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

324 West Bay Drive NW, Suite 201

Olympia, WA 98502

(360) 866-4000 phone

(360) 866--3832 fax

www.buddbaylaw.com

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*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
*On Behalf Of *Michael Kelly
*Sent:* Thursday, May 19, 2022 10:49 AM
*To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
*Subject:* [WSBARP] HOA "jurisdiction" question (Pre-RCW 64.38)

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

[image: Logo Description automatically generated]

PO Box 64236 | Tacoma, WA 98464

www.soundlawfirm.com
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