ENFORCEMENT

Enforcing your governing documents should be clean and simple.  You don't need a Tibetan monster.


The X-Files Arcadia taught us to follow the rules...OR ELSE!  How has enforcement changed at your CIC since 1999?

Privitization and Its Discontents: Common Interest Communities and the Rise of Government for "the Nice."

SETTING THE TONE

Paula A. Franzese's Privatization and Its Discontents: Common Interest Communities and the Rise of Government for "the Nice." (ABA's The Urban Lawyer, Summer 2005, Vol. 37, No. 3) provides a scathing rebuke of many wayward CIC restrictions and enforcement regimes.  Sign up for a free JSTOR account and enjoy!

PENALTIES

The singular goal of enforcement is compliance, not punishment.  This means that penalties for violating rules, restrictions and covenants must be reasonable.  Courts are likely to reject penalties that do not suit the offensiveness and/or harm of a particular violation.  If you believe a $1,000 fine is a reasonable penalty for leaving a rubbish bin on the curb overnight, think again.

Penalties are not compensation for actual expenses (cleaning, remediation, etc.) which associations can generally recover separately by assessing the unit(s) that created the circumstances leading to such expenses.

1️⃣ Do we have the authority?

2️⃣ Is the rule enforceable?

3️⃣ Is the penalty reasonable?

A bewildered homeowner posted HOA hit us with an absurdly large fine. I don't know what to do.  $6,000 for garbage cans that weren’t hidden well enough.

NORTH CAROLINA regulates monetary penalties in its HOA statute § 47F-3-107.1 that requires:

COLORADO regulates monetary penalties via § 38-33.3-209.5:

FLORIDA regulates monetary penalties via 718.303(3) (condominiums) and 720.305(2) (HOAs):

NEW YORK case law: NY Supreme Court: Gabriel v. Board of Managers of Gallery House Condominium (Casetext)

TEXAS regulates monetary penalties via TPC 209.0061 that references requirements for hearings in TPC 209.007:

VIRGINIA regulates monetary penalties via § 55.1-1819 (HOAs) and § 55.1-1959 (condominiums):


Beware of monetary penalties that run afoul of your state statutes ... and even SCOTUS.

While decisions related to constitutional arguments do not directly impact most private contracts (covenants that run with the land), the United States Supreme Court (SCOTUS) has decided cases that related to excessive fines.

A Florida woman was fined $100,000 for a dirty pool and overgrown grass. When do fines become excessive?

Excessive fines? Florida city hits homeowners with massive penalties — Kristine Phillips | USA TODAY| 07/19/19

"The protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority… For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history... Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies."   — Ruth Bader Ginsburg, SCOTUS Majority Opinion in Timbs v. Indiana (February 20, 2019)


Illinois: State statute requires fines imposed by condo boards to be reasonable  — Howard Dakoff | Chicago Tribune | 08/13/23

Florida: Appeals court sides with Dunedin after city fined man $30K for uncut grass | 11th Circuit Appeals - 07/14/22: James Flicken, et. al v. City of Dunedin, FL

Your Association NEEDS a Fine and Enforcement Policy

Many state statutes such as those in Texas ( HB614 effective September 1, 2023) and Washington (I, II, III) require due process and adherence to a previously published schedule of fines.

Arizona: Turtle Rock III Homeowners Ass'n v. Fisher confirms what many already knew: associations need a fee schedule timely disseminated to owners that demonstrates both the amounts and appropriateness of monetary penalties ("fines").  View an example Fine and Enforcement Policy (see page 2  of the R&Rs).  

Therefore, although the HOA had the authority under state statutes and the CC&Rs to promulgate a fine schedule for monetary penalties, there is no competent evidence in the record before us that it did so. Without competent evidence of a fee schedule timely promulgated demonstrating the fine amounts and the appropriateness of such amounts, monetary penalties are per se unreasonable. Even if a fee schedule existed, the HOA had the burden to prove its damages.

REMEDIES

Homeowners (and Boards) should carefully consider reasonable remedies without making assumptions.  The nature of enforcement is reactive, but should not be retroactive.  Many homeowners are shocked that they can purchase a home and then be cited for violations predating their ownership despite having received assurances -- even written assurances in the form of a resale certificate -- that there are no known violations.  Something unknown at the time those assurances are provided can change to something known at a later time.  Here's a retroactive enforcement case from North Carolina.  Also see Hot Topics from CIC Info Bytes Issue# 77.

Learn from history...and don't necessarily try to fix it.  Courts have ruled in multiple cases where communities assume they have the right to: 1) reject an application for work already completed, 2) remove an improvement, and 3) recover all their attorney's fees.  A few examples:


DISCRETION

You've heard it again and again: statues vary by state.   Enforcement also varies, but there are best practices your community can follow.  After reading Condo Board is Required to Enforce the Rules (based on Florida statutes), one might conclude that enforcing every covenant and restriction in exacting fashion is a universal mandate, but common interest communities have discovered this is not always the best path forward.  Case law has uncovered that not all restrictions (especially when it comes to rules and regulations) are reasonable.  Experience has taught many CICs that it is better to offer avenues for homeowners to engage in certain activities and forms of expression than to ban X, Y or Z outright and that specific situations bring highlight the failings of overly broad restrictions.

Washington State's WUCIOA statute that became effective July 1, 2018, includes specific language representative of court decisions related to Board authority to reasonably enforce the governing documents.  RCW 64.90.405(7)(8)(9) - Powers and Duties:


(7) The board may determine whether to take enforcement action by exercising the association's power to impose sanctions or commencing an action for a violation of the governing documents, including whether to compromise any claim for unpaid assessments or other claim made by or against it.

(8) The board does not have a duty to take enforcement action IF it determines that, under the facts and circumstances presented:

(a) The association's legal position does not justify taking any or further enforcement action;

(b) The covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with law;

(c) Although a violation may exist or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association's resources; or

(d) It is not in the association's best interests to pursue an enforcement action.

(9) The board's decision under subsections (7) and (8) of this section to not pursue enforcement under one set of circumstances does not prevent the board from taking enforcement action under another set of circumstances, but the board may not be arbitrary or capricious in taking enforcement action.


While this statute specifically allows reasonable discretion to enforce the governing documents, it also expressly forbids arbitrary and capricious enforcement.  A Board of Directors does not possess the authority to make decisions in direct conflict with statutes or an organization's own governing documents.  Such decisions would be considered unreasonable.

Reasonable decision-making is an essential part of the "business judgement rule" (see Duty of Care and Standards of Conduct).  The other, perhaps less obvious point: discretion should be used sparingly.  Frequent intervention and application of discretion creates additional opportunities for an arbitrary and capricious (illegal and/or unlawful) process.  Arbitrary and capricious enforcement = different enforcement for violating the same restriction in the same way.  Unique enforcement outcomes for violations of different restrictions is not necessarily arbitrary and capricious.  

Generally, enforcing a well-written set of governing documents should not require Board intervention unless: 

Does your CIC permit circumstances that are not in compliance with your governing documents?

Selective enforcement is generally considered arbitrary and capricious and therefore illegal.  Notably, selective enforcement and reasonable accommodations required by federal statutes like the Fair Housing Act are mutually exclusive and should not be confused.


Enforcement ... is never going to be 100% equal, 100% of the time because it's done by human beings who are fallible, and have limitations. - Barbara (CAM)


It is fairly common for governing documents to provide individual members (owners) the ability to enforce compliance themselves without the Board's approval.  In Wimberly v. Caravello, the Washington Court of Appeals ruled that the Board's decision-making was irrelevant given the nature of an owner-enforced dispute.  


Volunteer leaders need to understand when their association Board should get involved and when to leave "disputes between members."  In 'The Option of Doing Nothing and Reasonable Inquiry' (video embedded below), Ken Harer discusses how Board members can meet their duty of care by ensuring that they are not dismissive of potential enforcement actions.


Non-judicial dispute resolution such as alternative dispute resolution (ADR) (internal dispute resolution (IDR) required for California CICs) is a fantastic method to identify solutions at a relatively low cost in terms of time, money and other resources.

Discretion Deep Dive With UCIOA

Comments in latest version of the Uniform Common Interest Ownership Act (UCIOA) explain the balancing act related to discretion and enforcement.

15. New subsection (f) addresses the important question of whether the Association may “selectively enforce” its rules or whether it is obliged to enforce the rules to the letter in every instance, at the risk of being found by a court to have failed to meet its fiduciary duties, or to have waived its right to enforce the rules in some future instance as a consequence of its failure to enforce the rules in this instance.

In evaluating the alternative outcomes here, the extreme positions are clear. On the one hand, one could assert that the Board’s obligation is to strictly enforce or attempt to enforce every alleged breach of the rules, so that the board can never be accused of selective enforcement, favoritism, breach of duty, or waiver.

Alternatively, the board could be held free of any obligation to enforce at any time, without in any way constraining its ability to enforce the same rules at a later time against the same or different persons in those cases where the board decided it would do so.

In the middle is a rule of law that would guide the Board’s exercise of discretion. There are a number of theoretical standards that might guide the Board’s discretion:

(i) the ‘business judgment rule’; 

(ii) arbitrary and capricious; 

(iii) reasonableness; 

(iv) bad faith; 

(v) discriminatory or other improper purposes; 

(vi) “best interests of the association”; 

(vii) “good cause”; or 

(viii) perhaps the Latin maxim “De minimus non curat lex”- the notion that “the law does not care about insignificant matters.”

There have also been legislative proposals in various states in response to the issue of discretionary rules enforcement, although there does not appear to be a consensus position. Several of those proposals were considered by the drafters.

The text in subsection (f) represents a middle position to guide an Executive Board as it considers whether or how to enforce a particular rule. The text identifies those circumstances where the Board might conclude, in any given case, not to enforce the rules as they have been drafted. These criteria are premised, of course, in all instances on the recognition that the decision-making process of the Executive Board is subject to the “Business Judgment Rule”; see

Comments to Section 3-103.

In those circumstances where the Board declines to enforce a rule, nothing in this Act precludes an individual unit owner from seeking independently to enforce the rules in a particular instance pursuant to Section 4-117. Alternatively, the unit owner could seek to require enforcement of the rule by the Executive Board for a breach of its duty; such a suit would be measured by the extent the board had abused its discretion under subsection (f).

16. While subsection (f) deals with the executive board’s discretion in enforcing its rules in any single instance, sub-section (g) states the basic principle that the board’s decision in one instance is not binding in another future instance, under another set of circumstances. At the same time, the subsection emphasizes that the Board may not act in an arbitrary or capricious fashion.

As with every provision of this Act, Section 1-108 makes clear that “principles of law and equity...supplement the provisions of this Act, except to the extent inconsistent with this Act”. In the case of 3-102(g), it is clear that other principles of law and equity, including the law of waiver and course of performance, would supplement this section. Such principles have been often been applied by courts in appropriate circumstances as they consider the extent to which an absence of enforcement over time has modified recorded covenants affecting real estate, and this Act does not modify those principles, except as stated in (g).

CULTURE OF COMPLIANCE

"Common interest communities ... present themselves as models of cleanliness, orderliness, and predictability.  Implicit, if not explicit, in their very marketing is the message: "Come, comply with us.""  - Paula A. Franzese's Privatization and Its Discontents: Common Interest Communities and the Rise of Government for "the Nice."

"If you're relying on the achievements of the space program to find out what's in someone's backyard, it's probably not your business." — John Oliver HOA Segment April 2023

Repeat after me: the singular goal of enforcement is compliance, not punishment. 

In OH, BEHAVE! Post-Pandemic Solutions: How to Build a Stronger Rules-Enforcement Culture, Andrew Penny elaborates on the myriad challenges that can result from a seemingly small, innocuous violation.  He also contemplates how to develop a culture where voluntary reporting is appreciated.  Unlike 'Cynthia' in GEICO's infamous HOA commercial, many communities rely on passive systems of 'aggrieved' reporting by residents.

Taking a "see no evil, hear no evil" approach to enforcement is fraught with challenges.  Violations, even if they are not always apparent, can become expensive and/or pervasive problems.  Consider a multi-family housing property where clearance needs to be maintained for sprinkler heads.  Meeting fire code could be the difference between fire suppression and significant damage and/or loss of life.  

Actively engaging in frequent, invasive surveillance is quite different than routine review of areas within a community that are subject to the governing documents.  Written policies and procedures explaining how your community accomplishes routine inspection is an excellent way to ensure uniform application and enforcement.  Consider revising rules to add specificity if you discover violations that are typically imperceptible and/or that cause no actual harm to the common interests and purpose of your community.  Court cases have proven that attempting to enforce unreasonable rules results in negative outcomes.  Even the enforcement of reasonable rules in unreasonable circumstances is an equation for discontent.

Proactive management related to your governing documents should include communication, monitoring and enforcement rooted in an objective and unbiased, yet empathetic approach.  Emphasize consistency, empathy, honesty, integrity, reason and transparency in your enforcement.  Read Always Ask "WHY?": Are Empathy and Reason YOUR Stars and Stripes?

Encourage a culture of compliance: make reporting violations EASY!  Like THIS.


The unwritten rule for everything is that if nobody notices or knows you broke the rule, there will probably be no consequences. - Barbara (CAM)


REMEMBER: There's generally no requirement to immediately report violations in progress.  In fact, most violations are reported some time after they occur. Statutes of limitations (years long) do not create a "reasonable" time frame for reporting and enforcement actions.  What's the "reasonable" expectation that violations are reported and that any follow-up enforcement occurs in a timely manner?  What's timely to you isn't necessarily what's reasonable, but you probably shouldn't receive violation notices for infractions that occurred months or years in the past.

Enforcement is a catalyst for change.

CATALYST FOR CHANGE

Municipalities are grander in scale than common interest communities which necessarily means they have an expansive set of restrictive ordinances.  Maintaining the public right of way is serious business.  This story from a large municipality (San Francisco) can teach CICs an important lesson: when Cynthia takes down your mailbox, enforcement can be a catalyst for change.

San Francisco is forcing couple to remove sidewalk 'obstruction' — or pay $1,400.  It's a little free library.  Aidan Pollard | Business Insider | 03/26/23

DUE PROCESS

Due process is the formal expression of the more colloquial "opportunity to be heard" which is, in many cases, a statutory requirement.  Beyond statutes, multiple courts have recognized the importance of providing a fair and reasonable process that involves an impartial hearing.  Your governing documents should provide for a written hearing procedure.  View hearing procedures in Declaration Language to Live By and example rules.


Impartial hearing processes provide a safe space to present evidence and avoid conflicts of interest.  All parties should understand the process and be prepared to set aside emotions and personalities to understand the heart of the matter.  Take a formulaic approach!

Anonymous complaints are inconsistent with due process if they cannot be substantiated by a reasonable person using reasonable effort.  An anonymous person cannot appear at a hearing to present evidence.  RCW 64.90.495(1)(k) requires associations to retain materials relied upon by the board or any committee concerning a decision to enforce the governing documents for a period of seven years after the decision is made.  Note that there is no right to anonymity and that complaints, if relied upon, become records of the association.  Most CIC records are subject to disclosure.


RCW 64.90.405(2)(l) - Powers and Duties


(2)(l) Enforce the governing documents and, after notice and opportunity to be heard, impose and collect reasonable fines for violations of the governing documents in accordance with a previously established schedule of fines adopted by the board of directors and furnished to the owners;

(5) If a tenant of a unit owner violates the governing documents, in addition to exercising any of its powers against the unit owner, the association may:

(a) Exercise directly against the tenant the powers described in subsection (2)(l) of this section;

(b) After giving notice to the tenant and the unit owner and an opportunity to be heard, levy reasonable fines against the tenant and unit owner for the violation; and


RCW 64.90.480(6)(7) - Assessments & Capital Contributions


(6) To the extent that any expense of the association is caused by willful misconduct or gross negligence of any unit owner or that unit owner's tenant, guest, invitee, or occupant, the association may assess that expense against the unit owner's unit after notice and an opportunity to be heard, even if the association maintains insurance with respect to that damage or common expense.

(7) If the declaration so provides, to the extent that any expense of the association is caused by the negligence of any unit owner or that unit owner's tenant, guest, invitee, or occupant, the association may assess that expense against the unit owner's unit after notice and an opportunity to be heard, to the extent of the association's deductible and any expenses not covered under an insurance policy issued to the association.

LEGAL PRECEDENT

Community association homeowners and representatives should understand several legal caveats, concepts, and precedents related to enforcement.

NARROW LIMITS OF BROADLY CONSTRUCTED COVENANTS


At issue in this case is the interpretation and application of the covenant requiring a lot owner to maintain his lot in a "clean and sightly" condition and in a "compatible aesthetic appearance with other well-maintained lots[.]"

While our research reveals that it is not uncommon for homeowners' association covenants to contain a "clean and sightly" standard, this standard is nonetheless ambiguous and susceptible to various conflicting interpretations. Likewise, a covenant requiring a "compatible aesthetic appearance with other well-maintained lots" is subject to individual subjective interpretation based on personal preference.

As there is no "ascertainable standard" contained in the covenant by which this Court can "objectively determine" whether the Keadeys' conduct conforms with the covenant, our enforcement of the covenant would be arbitrary. Id. Accordingly, we conclude that the covenant at issue is void for vagueness, and hold that the trial court did not err in granting summary judgment in favor of the Keadeys.



On appeal, the Sainanis argue that the seasonal guidelines exceed the HOA’s authority under the 2014 amended declaration and are thus unenforceable.

The HOA disagrees because:

(1) the 2014 amended declaration grants the HOA authority to adopt rules and regulations that supplement the restrictive covenants; 

(2) the restrictive covenants prohibit nuisances on lots, which consist of “anything ‘done or placed thereon which is or may become an annoyance or nuisance to the neighborhood,’” including any exterior lighting causing “an adverse visual impact to adjacent Lots”; and 

(3) the restrictive covenants prohibit any “modification or alteration of any Lot,” even those that “are simply ‘placed’” thereon, without the ARB’s approval.

The Sainanis respond that the HOA’s justification for the seasonal guidelines “is not reasonably related to any restrictive covenant and their enforcement is, therefore, arbitrary, capricious and unreasonable.”  We agree with the Sainanis.


...As we recently observed, “in keeping with our common-law traditions, Virginia courts have consistently applied the principle of strict construction to restrictive covenants.”  Underlying this principle of strict construction is the common-law premise that the “absolute right” to property “consists in the free use, enjoyment, and disposal of all [one’s] acquisitions, without any control or diminution, save only by the laws of the land.” 


We are further unpersuaded by the HOA’s interpretation of the prefatory sentence of the nuisance section in Article IX, Section 3 of the declaration as being broad enough to authorize the seasonal guidelines...


...Even if we were to view the modifications-and-alterations covenant in a vacuum, strict-construction principles still do not permit us to read this covenant as broadly as the HOA contends that we should...


...Our narrow reading of this power parallels the general rule that design-control powers do not include “an implied power to impose design controls for aesthetic purposes.”  See Restatement (Third) of Property: Servitudes § 6.7 illus. 9 (2000) (illustrating that a rule restricting exterior paint colors is invalid when the declaration of covenants only addresses setback and fence restrictions without mentioning any other design controls); see also id. § 6.9 (“Except to the extent provided by statute or authorized by the declaration, a common-interest community may not impose restrictions on the structures or landscaping that may be placed on individually owned property, or on the design, materials, colors, or plants that may be used.”).  As the Restatement recognizes, design-control powers “are not necessary to the effective functioning of the community,” and “powers to control the design of individual properties within the community do not necessarily further public interests or fulfill reasonable expectations of the property owners.”


While express design-control powers granted by statute or by the declaration are generally enforceable, the scope of implied powers is limited to governing or protecting common property and preventing “nuisance-like activities” on individually owned property.  The rationale for not giving an expansive interpretation to an association’s power to make rules restricting use of individually owned property is based in the traditional expectations of property owners that they are free to use their property for uses that are not prohibited and do not unreasonably interfere with the neighbors’ use and enjoyment of their property.  Discretionary design-control powers that are not expressly authorized by statute or by the declaration “create two kinds of risks for property owners”:

(1) “may not be able to develop in accordance with their expectations because they cannot predict how the controls will be applied” and 

(2) “may be subject to arbitrary or discriminatory treatment because there are no standards against which the appropriateness of the power’s exercise can be measured.”

The Restatement warns that “[i]f allowed, completely unfettered design-control powers could depress property values and operate as unreasonable restraints on alienation.”

INTERPRETATION

Pritchett v. Picnic Point Homeowners Association is an interesting case where the WA Court of Appeals, Division 1 reversed an earlier trial court decision.  The case centers on restrictive covenants related to obstructing views.  Here are some key excerpts:


¶ 17 The interpretation of a restrictive covenant is a question of law that we review de novo. Wimberly v. Caravello, 136 Wn. App. 327, 336, 149 P.3d 402 (2006). Restrictive covenants are interpreted to give effect to the intention of the parties to the agreement incorporating the covenants and to carry out the purpose for which the covenants were created. Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669 (1997). “The purpose of those establishing the covenants is the relevant intent. Subdivision covenants tend to enhance the efficient use of land and its value. The value of maintaining the character of the neighborhood in which the burdened land is located is a value shared by the owners of the other properties burdened by the same covenants.” Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 683, 151 P.3d 1038 (2007) (citing Riss, 131 Wn.2d at 621–24). Accordingly, we must place “special emphasis on arriving at an interpretation that protects the homeowners' collective interests.” The Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wn. App. 177, 181, 810 P.2d 27 (1991). “[I]f more than one reasonable interpretation of the covenants is possible regarding an issue, we must favor that interpretation which avoids frustrating the reasonable expectations of those affected by the covenants' provisions.” Green, 137 Wn. App. at 683.


¶ 18 In determining the intent of the parties to the agreement incorporating the covenants, we give “covenant language ‘its ordinary and common use’ and will not construe a term in such a way ‘so as to defeat its plain and obvious meaning.’ ” Wilkinson v. Chiwawa Cmtys. Ass'n, 180 Wn.2d 241, 250, 327 P.3d 614 (2014) (quoting Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993); Riss, 131 Wn.2d at 623). We examine the instrument in its entirety and use extrinsic evidence to “ ‘illuminate what was written, not what was intended to be written.’ ” Wilkinson, 180 Wn.2d at 250–51 (quoting Hollis v. Garwall, Inc., 137 Wn.2d 683, 697, 974 P.2d 836 (1999) ).


¶ 29 The trial court's analysis was flawed and its ruling erroneous. First, the trial court improperly imputed a de minimis standard into the phrase “obstruct the Puget Sound or Park view of any other parcel.” Contrary to the trial court's analysis, there already exists an objective standard against which the prohibition, as written, can be measured. A homeowner's existing view is either obstructed or it is not obstructed. Silence as to the extent of an obstruction does not create an ambiguity—“ ‘[i]t is the duty of the court to declare the meaning of what is written, and not what was intended to be written.’ ” Wilkinson, 180 Wn.2d at 252 (internal quotation marks omitted) (quoting Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) ). By assuming that a minimal view obstruction could not possibly violate the covenant, the trial court introduced subjectivity to a standard that was otherwise facially objective. Moreover, the trial court's analysis ignored the Statement of Purpose—an integral part of the CC&Rs that is helpful for illuminating the purpose of the covenants contained therein. See Nelson v. Duvall, 197 Wn. App. 441, 453, 387 P.3d 1158 (2017) (“[I]n determining legislative intent, the ‘preamble or statement of intent can be crucial to interpretation of a statute.’ ” (quoting Towle v. Dep't of Fish & Wildlife, 94 Wn. App 196, 207, 971 P.2d 591 (1999) ) ).


¶ 30 Second, the trial court's analysis eschewed relevant extrinsic evidence and considered only statements made by select former Board members four years after the view protection clauses were adopted.3 But the intent of the homeowners who voted to adopt the covenants cannot be discerned through the post-hoc statements of individual Board members. See W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wn.2d 599, 611, 998 P.2d 884 (2000) (“A noncontemporaneous understanding of legislative intent is not reflective of the Legislature's rationale for enacting a 1981 statute.”); see also In re F.D. Processing, Inc., 119 Wn.2d 452, 461, 832 P.2d 1303 (1992) ( “[T]he comments of a single legislator are generally considered inadequate to establish legislative intent.”); State v. Leek, 26 Wn. App. 651, 657–58, 614 P.2d 209 (1980) (statements made by individual legislators five years after bill's enactment were not competent to prove legislative intent). Neither can the court consider evidence that varies, contradicts, or modifies the written word. Bloome v. Haverly, 154 Wn. App. 129, 138, 225 P.3d 330 (2010). Rather, the appropriate epoch for consideration was the period of time leading up to the adoption of the view protection clauses. It was during this time that the covenants were drafted, the drafters explained the proposal to the homeowners, and the homeowners who voted “yes” formed their reasons for so doing.


¶ 32 Finally, the trial court's conclusion that the CC&Rs could not be reasonably interpreted to prohibit Pritchett's proposal is belied by its order directing the Association to amend the CC&Rs and add language to conform to the court's interpretation. Rather than interpreting the writing to declare what was written, the trial court declared that which it believed the drafters intended to write and then required the Association to amend the CC&Rs to conform to the court's vision. “A court may not create a contract for the parties which they did not make themselves. It may neither impose obligations which never before existed, nor expunge lawful provisions agreed to and negotiated by the parties.” Agnew v. Lacey Co-Ply, 33 Wn. App. 283, 288, 654 P.2d 712 (1982).


¶ 33 The plain language of Section 7.4 prohibits homeowners from constructing or modifying structures if doing so would “obstruct the Puget Sound or Park view of any other parcel,” regardless of the severity of the obstruction. This plain language understanding is supported by the statement of purpose and the extrinsic evidence surrounding the adoption of the covenants. By ruling otherwise, the trial court erred.

AFFIRMATIVE DEFENSES

In a summary judgment motion, the burden is on the moving party to demonstrate that there is no genuine issue as to a material fact and that, as a matter of law, summary judgment is proper. See Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue of material fact is resolved against the moving party. In addition, we consider all the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party.

STRICT PERFORMANCE, WAIVER AND ABANDONMENT

Regardless of enforcement practices, it is rare that CICs abandon -- in whole or part -- the requirements of their recorded declaration of covenants, conditions and restrictions.  Even the "No Waiver" clause below does not bullet-proof your association from lackluster decision-making or an adverse court decision.  Note the excerpt below from Riss V. Angel where covenants were found to be binding, but the process used to reach an outcome failed to meet standards of reasonable judgement.


ABA: Avoiding Unintentional Waiver of a No-Waiver Clause

Riss v. Angel - 1997 Supreme Court of Washington


The court ruled the covenants are binding, but it found the association acted unreasonably in rejecting Plaintiffs' plans. The court concluded that the covenants as written are reasonable, but do not permit the homeowners to impose restrictions more burdensome than those expressed in the covenants. Specifically, the court said that the homeowners could not restrict size, height, and proximity to neighbors beyond the minimum square footage and the maximum height restrictions, and the setback requirements set out in the covenants. The court concluded that paragraph six's discretionary authority to reject proposals on the basis of design cannot be read as including authority to limit "bulk," i.e., size or scale. CP at 1633. The court concluded the association does have wide discretion to control design aesthetics, which the court reasoned included authority to reject, for example, a geodome, A-frame, or Tudor castle. The court also rejected the homeowners' concerns that lot six is special, saying that if special restrictions on a specific lot were desired, the covenants must clearly say so. 

The court also concluded that the association acted unreasonably because it rejected Plaintiffs' plans without comparing the width and depth of other homes in the neighborhood to Plaintiffs' proposed residence, failed to thoroughly investigate, and relied upon inaccurate information. 


In a somewhat converse scenario to Riss, a 2021 Indiana Court of Appeals of Indiana ruling decided that an owner lost the right to argue against restrictive covenants due to abiding those covenants for an extended period of time.


In Park Sutton Condominium vs. Barkan Management, a waiver of liability was found to provide an incomplete shield against all claims.


Both Nahrstedt v. Lakeside Village Condominium Assn and Hidden Harbour Estates, Inc v. Norman establish standards of reasonableness.  Recorded restrictions such as those in a declaration / CC&Rs are covenants running with the land which confer a strong presumption of validity that is likely only overcome by when those restrictions are found to be: 1) arbitrary, 2) in violation of public policy (including discriminatory covenants), or 3) in violation of an individual's constitutional rights.


Example Declaration / CC&R Language


Strict Compliance - Each Owner, each Occupant, the Board and the Association shall comply strictly with this Declaration, the Bylaws, and the Rules and Regulations adopted pursuant thereto, as they may be lawfully amended from time to time, and the decisions of the Board.    


Failure of Board to Insist on Strict Performance No Waiver - The failure of the Board in any instance to insist upon the strict compliance with this Declaration or the Bylaws or Rules and Regulations of the Association, or to exercise any right contained in such documents, or to serve any Notice or to institute any action, shall not be construed as a waiver or a relinquishment for the future of any term, covenant, condition, or restriction. The receipt by the Board of payment of an Assessment from an Owner, with knowledge of a breach by the Owner, shall not be a waiver of the breach. No waiver by the Board of any requirement shall be effective unless expressed in writing signed on behalf of the Board.

The Urban Lawyer and Other Academic Research
Privitization and Its Discontents: Common Interest Communities and the Rise of Government for "the Nice."
Be Reasonable! How Community Association Can Enforce Rules Without Antagonizing Residents, Going to Court, or Starting World War III
Common Interest Communities: Private Governments and the Public Interest
Guilt by Association - A Survival Guide for Homeowners, Board Members and Property Managers
All Governance Topics