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

Thu May 19 15:24:29 PDT 2022

I have had this issue come up several times and litigated it also the bottom line is if there was nothing of record that imposed a restriction or made property subject to covenants or make it a HOA member it cannot be enforced except where the owner after the sale voluntarily became a member participated in the HOA paid amounts assessed and accepted benefits of membership in HOA

Bryce H. Dille
Dille Law, PLLC
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Tom Westbrook
Sent: Thursday, May 19, 2022 3:13 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA "jurisdiction" question (Pre-RCW 64.38)

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

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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 Michael Kelly
Sent: Thursday, May 19, 2022 10:49 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto: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<mailto:mike at soundlawfirm.com>

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