Birney Dempcy, Et Ux. v. Chris Avenius
73369-9
| Wash. Ct. App. | Dec 19, 2016Background
- Four neighboring homeowners (Dempcy, Avenius, Shannon, Zemel) each hold an undivided one-fourth interest in a common parcel (Pickle Point) that includes landscaping, access roads, a retaining wall, and a deteriorated tennis court.
- The neighborhood is governed by CC&Rs that create a 4-member Architectural Control Committee (ACC) with authority over maintenance, regular assessments, and special assessments for extraordinary maintenance or capital improvements.
- The ACC repeatedly voted against repairing or retaining a tennis court; three members attended a meeting and voted against any athletic court.
- The DempCys contracted privately to repair the court, sued the other owners seeking declaratory relief and contribution for maintenance, and sought to prevent partition. The trial court ordered partition of the common area, declared that two ACC votes suffice for special assessments, and awarded fees to the Aveniuses.
- On appeal, the court reviewed interpretation of the deeds and CC&Rs de novo and reversed the partition order, upheld the two-vote rule for special assessments, held the CC&Rs bar individual liability for ACC acts, and vacated the attorney-fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common property may be partitioned | Dempcy: Partition is barred by deed/CC&R-created equitable interests and exceptions to partition apply | Aveniuses: Right to partition under RCW 7.52.010; no enforceable restriction preventing partition | Court: Partition order reversed — deeds/CC&Rs created equitable rights that bar partition without all co-owners' agreement |
| Vote threshold for special assessments | Dempcy: CC&Rs require a higher threshold; two votes insufficient to bind others for extraordinary maintenance | Aveniuses: CC&Rs delegate assessment decisions to ACC and require only 50% of parcels (two of four) for approval | Court: CC&Rs delegate authority to ACC; two votes of four owners suffice to approve special assessments |
| Whether an individual owner may perform self-help maintenance and demand contribution | Dempcy: Owners may self-help (maintain tennis court) and seek contribution if ACC fails to act | Aveniuses: CC&Rs allocate maintenance authority to ACC and do not permit unilateral self-help | Court: CC&Rs delegate maintenance to ACC and do not authorize self-help; owners may seek court enforcement of ACC duties but not unilateral self-help |
| Liability of ACC member (Shannon) for interfering with repairs | Dempcy: Shannon interfered with their contract and is liable for damages | Aveniuses: Actions were taken on behalf of ACC; CC&Rs bar personal liability for ACC members | Court: CC&Rs immunize ACC members for committee actions; dismissal of suit against Shannon affirmed |
| Attorney fees award | Dempcy: They were prevailing parties and fee award to Aveniuses was erroneous | Aveniuses: Prevailing on multiple CC&R issues, so entitled to fees | Court: Neither party is the overall prevailing party (each won on major issues); fee award reversed; no fees on appeal |
Key Cases Cited
- Ellis v. City of Seattle, 142 Wn.2d 450 (review standard for summary judgment)
- Tran v. State Farm Fire & Cas. Co., 136 Wn.2d 214 (summary judgment evidence/inferences)
- Chelan County Deputy Sheriffs' Ass'n v. Chelan County, 109 Wn.2d 282 (summary judgment—different conclusions preclude relief)
- Hamilton v. Johnson, 137 Wash. 92 (absolute right to partition absent agreement to hold for fixed time)
- Carter v. Weowna Beach Community Corp., 71 Wn.2d 498 (exceptions to partition where deed restrictions create enduring rights)
- Bauman v. Turpen, 139 Wn. App. 78 (restrictive covenant interpretation—intent determined from clear language)
- Marassi v. Lau, 71 Wn. App. 912 (when both parties prevail on major issues, attorney fees may be inappropriate)