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

[Jeff at bellanddavispllc.com]

Have you seen the Buck Mountain case?

 

Jeff Davis

 

W. Jeff Davis

BELL & DAVIS PLLC
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.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 <mailto:mike at soundlawfirm.com> 

 



 

PO Box 64236 | Tacoma, WA 98464 

 <http://www.soundlawfirm.com> www.soundlawfirm.com

 

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