Washington & Oregon Construction Defect Lawyer & Attorney : Barker Martin Law Firm : HOA's, Condos : Seattle, Portland

A case decided on the last day of December 2007 may affect how older condominiums vote on additions to condos.  Boards of older condominiums built prior to July 1, 1990 subject to the Horizontal Property Regimes Act often have difficulties knowing what percentage vote is required to do certain acts. In a recent decision, Lake v. Woodcreek Homeowners Association, Division I of the Washington Court of Appeals held that a homeowner adding a bonus room onto his unit actually converted common area to part of his unit under the theory that the air space around his unit was common area because common areas were defined as anything “not expressly described as part of the individual residence apartments or as limited common area.” Thus, the declaration required consent of all unit owners. This case could have a major impact on the ability of architectural control committees to approve exterior construction on condominiums subject to the Horizontal Property Regimes Act.

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In June 2007, the Division One Court of Appeals of Washington case reaffirmed that a claim of fraudulent concealment against a home builder requires privity, meaning that the plaintiff must have a contract with the builder – i.e. he must be the original owner of the home. This continues the trend of limiting most claims single family homeowners may have against their builders to those who bought directly from the builder. Subsequent purchasers of single family homes have very few rights against their builders, even if the original purchaser only owned the home a short time, as in this case. The court also reiterated the elements of fraudulent concealment:

"[A] builder-vendor's duty to speak arises in those situations where: there is a concealed defect in the premises of the residential dwelling, the builder-vendor has knowledge of the defect, the defect is dangerous to the property, health or life of the purchaser, and the defect is unknown to the purchaser and a careful, reasonable inspection on the part of the purchaser would not disclose the defect. In addition, the defect complained of must ‘substantially affect[ ] adversely the value of the property or operate[ ] to materially impair or defeat the purpose of the transaction. In such a situation, a builder-vendor's failure to inform the purchasers of the defect constitutes fraudulent concealment."

Check out the full opinion in Nguyen v. Doak Homes.

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In June 2007, the Division One Court of Appeals of Washington case reaffirmed that a claim of fraudulent concealment against a home builder requires privity, meaning that the plaintiff must have a contract with the builder – i.e. he must be the original owner of the home. This continues the trend of limiting most claims single family homeowners may have against their builders to those who bought directly from the builder. Subsequent purchasers of single family homes have very few rights against their builders, even if the original purchaser only owned the home a short time, as in this case. The court also reiterated the elements of fraudulent concealment:

"[A] builder-vendor's duty to speak arises in those situations where: there is a concealed defect in the premises of the residential dwelling, the builder-vendor has knowledge of the defect, the defect is dangerous to the property, health or life of the purchaser, and the defect is unknown to the purchaser and a careful, reasonable inspection on the part of the purchaser would not disclose the defect. In addition, the defect complained of must ‘substantially affect[ ] adversely the value of the property or operate[ ] to materially impair or defeat the purpose of the transaction. In such a situation, a builder-vendor's failure to inform the purchasers of the defect constitutes fraudulent concealment."

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