Northwest Condo & HOA Law Blog : Washington & Oregon Construction Defect Lawyer & Attorney : Barker Martin Law Firm : Homeowner Associations, Condos : Seattle, Portland

One of the biggest challenges a homeowner board faces is irrational conduct by a problematic homeowner.  I've seen this scenario play out in several ways, with all of them sharing the same underlying themes: unnecessary conflict, wasted time and increased management and legal fees.

• In two similar instances, condominium homeowners whose units were damaged by water intrusion emanating from common elements unreasonably interfered with the association's efforts to repair the units.  After many months of failed negotiations without professional assistance and repeated failed repair attempts which cost the associations unnecessary costs, the associations finally sought legal counsel.  In both instances, the associations were only able to resolve the dispute through court-ordered preliminary injunctions.
• Another common occurrence is the homeowner who continuously or consistently violates an association's CC&Rs.  Even after multiple violation notices or warnings, and rising fees, penalties and interest, the homeowner still ignores the association.
• Lastly, I have seen many instances where an individual homeowner takes an untenable position with respect to some action taken by the board.  The homeowner either cites inaccurate laws or unreasonable intepretations of the association's CC&Rs.  The owner often threatens to sue the association, and many times, the board members individually.

In these and other instances, a board of directors' first reaction is to try to work with the owner.  No board wants to immediately involve an attorney; rather, it is human nature to "just try to get along."  Plus, as members of the association themselves, a board often wishes to work amicably with their neighbors.  However, especially in instances of irrational behavior, legal intervention might be the quickest and least expensive means of resolution.

Whether or not a board seeks assistance from an attorney, I recommend the following steps be taken when dealing with an irrational homeowner:

   (1)  Identify early on that the owner is irrational.  Remember, irrational persons do not act rationally and likely will not respond to a rational and reasonable offer of compromise.

   (2)  Document, document, document.  Written documentation of all correspondence and communication is always important in the corporate or business context, but it is especially crucial when dealing with irrational persons who have a distorted perception of reality.

   (3) Try to identify an ally, either a family member or friend of the homeowner, who can help facilitate a resolution of the dispute.  However, beware; in my experience, I have found that a close family member may be too personally involved to provide objective assistance.  In some cases, the friend or family member may blindly support the owner and further exacerbate the conflict.    

   (4) Once the owner rejects a reasonable offer by the association to resolve the dispute, it probably is time to obtain professional assistance.  In my personal experience, an irrational person does not suddenly wake up one day and start to act rationally.

Irrational homeowners present some of the most unique challenges in my representation of homeowner associations.  Although I have learned it the "hard way," sometimes the quickest, and LEAST expensive resolution of a dispute is through immediate court intervention. 

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Many homeowner associations have covenants within their CC&Rs that limit a homeowner's right to restrict a neighbor's view.  For a view covenant to be legally enforceable, it must be included within a validly recorded instrument, such as the association's declaration or plat.  The covenants may include structures (e.g., homes, detached garages, sheds, fences, etc.), vegetation (e.g., trees or bushes) or even vehicles.  The view covenants also may be absolute or discretionary.

An example of an absolute view covenant would be a "25-foot height restriction on all structures constructed on the plat."  A discretionary view covenant would be a "restriction on trees or other vegetation that impairs the view from an adjoining owner's property."  Both absolute and discretionary view covenants must be reasonable and applied uniformily.  It should be no surprise that there are many more disputes and litigation involving discretionary view covenants than absolute covenants.

To enforce a view right, a homeowner associaton may seek injunctive relief from a court.  Time ordinarily is of the essence.  For example, if an owner is in the middle of constructing a home that exceeds the view covenant's height restriction, the plaintiff association would want to move without delay.  If the association delays for an unreasonable amount of time in seeking judicial intervention, the offending homeowner may be able to rely upon a laches, acquiescence or waiver defense.  What this means is if the plaintiff had constructive knowledge of the offending party's actions and through his words or conduct represents that he will offer no opposition, then the plaintiff may be barred from stopping the homeowner's conduct, or at least be limited in obtaining the relief sought.

I have found that many boards delay enforcing view restrictions, and often these delays prejudice their abilities to obtain successful outcomes (or at least efficient and timely successful results).  Either these associations think (hope) the offending party will come around, or they do not want to incur legal fees in hiring an attorney. Remember, most CC&Rs contain provisions for the Association to recover its attorneys' fees and costs incurred in enforcing its governing documents.

If your association would like more information on creating or enforcing view covenants, feel free to contact Barker Martin, P.S. by selecting the "Contact" tab at the top of this blog page.
 

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