The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
BIRNEY DEMPCY and MARIE
DEMPCY, husband and wife, and their No. 73369-9-1
marital community,
ORDER WITHDRAWING AND
Appellants, SUBSTITUTING OPINION
V.
CHRIS AVENIUS and NELA AVENIUS,
husband and wife, and their marital
community; JACK SHANNON, an
individual; and RADEK ZEMEL, an
individual,
Respondents.
Respondents, Chris Avenius, Nela Avenius, Jack Shannon, and Radek
Zemel, have filed a motion for reconsideration. Appellants, Birney Dempcy and
Marie Dempcy, have filed a response. A panel of the court has considered the
motion and determined that it should be granted and that the previous opinion
should be withdrawn and a substitute unpublished opinion should be filed. Now,
therefore, it is hereby
ORDERED that the opinion filed on December 19, 2016 is withdrawn; and it
is further
rri
ORDERED that a substitute unpublished opinion shall be filed.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BIRNEY DEMPCY and MARIE DEMPCY,
husband and wife, and their marital No. 73369-9-1
community,
DIVISION ONE
Appellants,
) UNPUBLISHED OPINION
V. )
)
CHRIS AVENIUS and NELA AVENIUS, )
husband and wife, and their marital )
community; JACK SHANNON, an )
individual; and RADEK ZEMEL, an )
individual, )
)
Respondents. ) FILED: April 3, 2017
)
APPELWICK, J. — Partition of a common area created by the deeds of the
adjacent properties was not available to the trial court as a remedy for the owners'
inability to agree on the use or maintenance of the common area. However, the
declaratory judgment that the CC&Rs governing the neighborhood require at least
two owners to vote in favor of an assessment for extraordinary maintenance of the
common property was proper. The deeds do not require perpetual maintenance
of a tennis court on the common property. The Aveniuses are entitled to attorney
fees on appeal related to the CC&R claims. We reverse in part and remand.
No. 73369-9-112
FACTS
Birney and Marie Dempcy, Chris and Nela Avenius, Jack Shannon, and
Radek Zemel own the four properties making up the Pickle Point neighborhood in
Bellevue. Each of the neighbors owns a one-fourth interest in a common property
located in the neighborhood.
The neighborhood is governed by a declaration of protective covenants,
restrictions, easements, and agreements (CC&Rs). The CC&Rs provide
restrictions on how the Pickle Point properties can be used. The CC&Rs also
establish an architectural control committee (ACC) consisting of one member for
each of the properties. And, the CC&Rs provide that each owner has the right to
use and enjoy the common property according to its nature and subject to the
restrictions within the CC&Rs.
The common property consists of a lawn, a retaining wall, landscaping, and
access roads. The common property also contains a tennis court. The tennis
court has fallen into a state of disrepair. The Dempcys have been concerned about
the condition of the tennis court since at least 2003. Their repeated efforts to
persuade the other owners to refurbish the tennis court were unsuccessful.
In 2013, the ACC discussed the tennis court at several meetings. The
Dempcys once again urged the other owners to agree to repair the tennis court.
But, the other owners voted against repairing the tennis court. The ACC ultimately
voted against having a tennis court or any athletic court in the common property.
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No. 73369-9-1/3
The Dempcys sued the Aveniuses, Shannon, and Zemel (collectively the
Aveniuses). They sought a declaratory judgment that the Aveniuses are obligated
to maintain the tennis court and contribute to the cost of maintenance.
Both sides moved for summary judgment. The trial court denied the
Dempcys' motion for summary judgment, but granted the Aveniuses' motion for
partial summary judgment. It ordered the common property to be partitioned. At
the Aveniuses' request, the court also entered a declaratory judgment that only
two votes are necessary to approve special assessments for extraordinary
maintenance costs of repairing the common property and tennis court. The court
also awarded attorney fees to the Aveniuses. The Dempcys appeal.
DISCUSSION
The Dempcys assert that the exceptions to the right of partition apply here,
so the trial court erred in ordering partition. They argue that the trial court
erroneously interpreted the CC&Rs as requiring the votes of only two owners to
approve special assessments for extraordinary maintenance of the common
property. Further, the Dempcys contend that by interpreting the CC&Rs in this
way, the trial court interfered with their right to maintain the common property
themselves and seek contribution from the other co-owners. They claim that the
trial court erred in concluding that the CC&Rs bar their suit against Shannon for
damages. And, the Dempcys challenge the award of attorney fees to the
Aveniuses. The Aveniuses, in turn, request attorney fees on appeal.
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No. 73369-9-1/4
On an appeal of a summary judgment order, this court engages in the same
inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450,458, 13 P.3d 1065
(2000). We consider the evidence and all reasonable inferences in the light most
favorable to the nonmoving party. Tran v. State Farm Fire & Cas. Co., 136 Wn.2d
214,224,961 P.2d 358(1998). Summary judgment is proper if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law. CR 56(c); Ellis, 142 Wn.2d at 458. If reasonable minds could draw
different conclusions from the undisputed facts, summary judgment is not
appropriate. Chelan County Deputy Sheriffs' Ass'n v. Chelan County, 109 Wn.2d
282, 295, 745 P.2d 1 (1987).
The interpretation of a restrictive covenant is a matter of law reviewed de
novo. Bauman v. Turpen, 139 Wn. App. 78, 86, 160 P.3d 1050 (2007). The
primary task in reviewing a restrictive covenant is to determine the intent of the
drafters and the purpose of the covenant at the time it was drafted. Id. The
drafters' intent is to be determined by examining the clear and unambiguous
language of the covenant. Id. at 88-89.
I. Partition of the Common Property
The Dempcys contend that the trial court erred in ordering the common
property to be partitioned. They argue that the exceptions to the right of partition
apply here.
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No. 73369-9-1/5
RCW 7.52.010 provides that one or more tenant in common may bring an
action to partition real property. If partition cannot be made without great prejudice
to the owners, a tenant in common may bring an action for sale of the commonly
owned property or a part of it. Id. In Washington, the right of partition by a tenant
in common has been described as absolute. Hamilton v. Johnson, 137 Wash. 92,
100,241 P.672(1925). Tenants in common have the right to partition the property,
so long as there is no agreement to hold the property in a tenancy in common for
a definite and fixed time. Id. It is no defense to partition that partition would be
inconvenient for the other owners or result in a depreciation in value of the owners'
property interests. Id.
But, the right to partition is subject to several exceptions. Carter v. Weowna
Beach Cmty. Corp., 71 Wn.2d 498,502,429 P.2d 201 (1967). The right to partition
is not available where a cotenant, by his own acts, is estopped or
has waived his right by express or implied agreement, or where his
cotenant's equitable rights will be minimized or defeated[,] or in
violation of a condition or restriction imposed upon the estate by one
through whom he claims.
Id. (citations omitted). In Carter, the purchasers of 81 residential lots all received
a 1/81 part of the adjoining tract. Id. at 498-500. Each deed provided,
"Together with an undivided one-eighty-first parts and share of, in
and to the private community Park, being the West 715 feet and
water thereon of government lots one, two, three and four, on the
west shore of Lake Sammamish, in said County and State, all of said
four lots having been subdivided and shown on unrecorded plat and
designated as WEOWNA BEACH, all subject, however, to the following
covenants, reservations and restrictions, to-wit:
"The grantee covenants with grantors that this deed and
possession of the premises hereby conveyed is accepted subject:
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No. 73369-9-1/6
61
"(2)To the joint and common use, pleasure and benefit of said
private community park by the several owners of the remaining 81
tracts in said Weowna Beach, including all water thereon, and on that
part of said Tract hereby conveyed lying West of said proposed
County Road, and the right to lay and maintain service water pipes
for the equal distribution of water to the several owners of said 81
Tracts, under such arrangement and plan as a majority of such
owners shall determine, including the right to form a water district
under the laws of the State of Washington."
Id. at 500(emphasis omitted). The Washington Supreme Court held that residents
could not sell their lots free and clear of this deed restriction, because they
purchased their properties with full knowledge of the rights of other purchasers.
Id. at 502. They could not later claim the absolute right to sell the property in a
way that would destroy those rights and violate their own agreement. Id.
Like in Carter, the Pickle Point common area was created by the same
deeds that created the four residential properties. The original owners of the Pickle
Point neighborhood divided the area into five parcels by recording four statutory
warranty deeds. These deeds transferred title to the four residential properties.
The owners of the four residential properties each received an undivided one-
fourth interest in the common property. By these deeds, the grantors created
equitable interests in the common area that inure as a fact of owning a residential
property. The existence of these equitable interests is bolstered by the language
of Section 5.1 of the CC&Rs, which provides, "Each owner of a parcel shall have
a right to use and enjoy the common property according to the nature of that
property and subject to the restrictions contained in this Declaration." The co-
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No. 73369-9-1/7
owners' equitable interests would be defeated if the common property were to be
partitioned without the agreement of all four co-owners.1 The trial court erred in
ordering the common property to be partitioned.
II. Maintenance of the Common Property
The Dempcys also challenge the trial court's declaratory judgment that two
votes of the ACC are necessary for decisions regarding special assessments for
extraordinary maintenance costs of the common property. And, they assert an
independent right to maintain the common property and then seek contribution for
the expenses.
The CC&Rs plainly delegate the task of maintaining the common property
to the ACC. Section 5.3 instructs the ACC to establish rules, hold meetings, and
impose regular and special assessments for the common property. Section 5.5
requires the ACC to, once a year, "determine the amount of money necessary for
the ordinary maintenance of the common property and the operation of the
Committee." This amount is to be equally divided amongst the Pickle Point
owners. And, Section 5.6 governs special assessments. It provides,
If the Committee determines that a special assessment is necessary
for the extraordinary maintenance of or capital improvements to the
common property, the Committee shall send a notice of special
assessment to the owners of all parcels. This notice shall include a
statement of the reasons such an assessment is necessary, the
amount to be assessed, the method of payment proposed by the
Committee, and the date and place for a meeting to discuss such a
special assessment. This meeting shall be held no sooner than thirty
(30) days from the date of the notice of special assessment. The
1 The division or disposition of the common property requires the agreement
of all co-owners.
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No. 73369-9-1/8
meeting will be conducted according to the rules adopted by the
Committee, and the owner of each parcel shall be entitled to one vote
for each parcel. Approval of a special assessment shall require
consent of 50% of the Parcels excluding Parcel 5.
By authorizing the ACC to determine the amount necessary for ordinary
maintenance, decide when a special assessment for extraordinary maintenance is
necessary, and vote to assess the co-owners for extraordinary maintenance costs,
the CC&Rs delegate authority over maintenance decisions to the ACC. Under the
terms of the CC&Rs, the ACC may exercise this authority so long as at least two
of the four co-owners consent.
The importance of the property being maintained is highlighted by the
CC&Rs. Section 5.1 protects the co-owners' rights to use and enjoy the property
according to its nature. And, Section 6.1 states,"Any owner of property within the
property subject to this Declaration shall have the right to enforce the Covenants
contained in this Declaration through an action at law or in equity." Where the ACC
has not discharged its maintenance duties in a reasonable and timely manner, an
owner may ask the court to enforce the maintenance obligation, as the Dempcys
have done. The CC&Rs, however, do not authorize self-help.2
2 While the Dempcys contend that self-help is available, they rely only on
cases that did not involve a committee or any allocation of responsibility amongst
the co-owners. See Yakavonis v. Tilton, 93 Wn. App. 304, 307, 968 P.2d 908
(1998); In re Estate of Foster, 139 Wash.224,225-26,246 P.290(1926); Womach
v. Sandygren, 107 Wash. 80, 81-82, 180 P. 922(1919). Here, the CC&Rs govern
maintenance of the common property, and they do not authorize self-help.
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No. 73369-9-1/9
The heart of this dispute is whether the tennis court must be maintained in
perpetuity.3 Three of the original deeds contained a covenant4 pertaining to the
common property:
AND SUBJECT TO: the assumption of and the agreement by
Grantees to do the following:
A. Grantees agree to pay one-fourth (1/4) of the cost of
developing and maintaining the common area described above
under Parcel B as follows:
1. All landscaping in the common area; and
2. The construction of a tennis court to commence not
sooner than January 1, 1970, and not later than January 1, 1973.
The date of commencement of construction to be decided by majority
vote of the owners of the four parcels of land served by said common
area. In event the vote is two for and two against, the results are to
be considered a majority for commencement of construction.
This covenant does not expressly require that a tennis court, once constructed,
must remain on the property perpetually (or until the co-owners amend their deeds
to remove reference to a tennis court). Nor do we think such a burden is to be
inferred. The CC&Rs contemplate that extraordinary maintenance or capital
improvements to the common area may become necessary or desirable. They
delegate responsibility for such decisions and necessary assessments to the ACC
with no restrictions relative to the tennis court. The removal of the tennis court or
construction of another recreational facility would qualify as an extraordinary
3 The parties did not brief this issue. But, at oral argument, the Dempcys
argued that the covenant contained in three of the four deeds requires the co-
owners to maintain a tennis court on the common property indefinitely, unless all
four co-owners agree to the contrary.
4 The deed to what is now the Zemel property did not contain this covenant.
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No. 73369-9-1/10
maintenance or capital improvements to the common property. Such decisions
are subject to approval of two votes of the ACC. We hold that the deeds do not
require that a tennis court must exist on the common property in perpetuity.
We leave to the trial court the question of whether the ACC has exercised
its authority to eliminate the tennis court. Whether the tennis court is to be
maintained or replaced, all owners are entitled to have the action taken in a
reasonable and timely manner, overseen by the trial court if necessary. It would
be no more acceptable for the ACC to leave the common property in a state of
perpetual construction than to leave it in a state of perpetual disrepair. We remand
to the trial court for further proceedings regarding the ACC's maintenance of the
common property.
Immunity from Liability under the CC&RS
The Dempcys assert that Shannon interfered with their contract to repair
the tennis court. They argue that the trial court erred in dismissing their suit against
Shannon for damages.
Three members of the ACC convened5 on July 23, 2013 to discuss the
future of the common property. During that meeting, the ACC interpreted the
CC&Rs as meaning that work done to the tennis court beyond the regular upkeep
requires a special assessment vote for approval. And, all three attending members
voted against having a tennis court or any athletic court in the commons.
5 Shannon, Zemel, and Chris Avenius were present. The meeting minutes
state that an attempt to call the Dempcys was unsuccessful.
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No. 73369-9-1/11
The Dempcys proceeded to contract with Northshore Paving to repair the
tennis court. Shannon learned of this contract. He sent Northshore Paving a letter
informing the company that the ACC had decided not to move forward with repairs
to the tennis court until a long range plan is developed and approved. Shannon
signed the letter with his name and, underneath,"Chair, Pickle Point Association."
Section 3.6 of the CC&Rs provides that members of the ACC cannot be
held personally liable for the actions or decisions of the ACC. The facts show that
Shannon was writing on behalf of the ACC, after a meeting of the ACC during
which the ACC voted not to pursue improvements on the tennis court. Therefore,
we conclude that the CC&Rs bar the Dempcys' suit for damages.
III. Attorney Fees
The CC&Rs provide that the prevailing party in any action brought to
enforce the CC&Rs is entitled to attorney fees. Applying this provision, the trial
court ordered the Dempcys to pay the Aveniuses' reasonable attorney fees, court
costs, and other expenses of the litigation relating to the CC&Rs.
Attorney fees are not recoverable for the partition issue, on which the
Dempcys have prevailed. See Hamilton v. Huggins, 70 Wn. App. 842, 851-52,
855 P.2d 1216 (1993). Nor are fees available to either side for the tortious
interference issue. The Dempcys did not make this claim to enforce the CC&Rs.
Instead, they argued that the Aveniuses intentionally interfered with their contract
to maintain the tennis court. They contended that this claim pertained to actions
taken without the authority of the ACC.
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No. 73369-9-1/12
The remainder of the claims did seek to enforce the CC&Rs. These claims
related to the ACC's authority and obligation to maintain the common area.
Because we uphold the trial court's declaratory judgment regarding the ACC's
authority over maintenance of the common area, the Aveniuses are the prevailing
party on the claims related to the CC&Rs. Accordingly, we affirm the trial court's
award of attorney fees to the Aveniuses. And, we conclude that the Aveniuses are
entitled to attorney fees on appeal related to the CC&R claims, subject to
compliance with RAP 18.1(d).
We reverse the trial court's partition order and remand for proceedings
consistent with this opinion.
WE CONCUR:
g44/
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