Leavenworth Real Estate

Leavenworth Property Rights Fundraiser

The Following is a Guest Post

Allow me to introduce myself and steal a moment of your time. My name is Tabatha Hargis, I own a property over in the Lake Wenatchee area which we spend time at regularly with family and friends. We come into the Leavenworth Village often and love all the wonderful shops and eateries. In addition to enjoying our cabins personally, we also rent them out on the weekends when we are not using them. This allows us to afford a second home and ultimately be able to continue enjoying this beautiful area. We are one of several families who use their cabins in this manner.

In the past year a few members of our home owners association in Chiwawa River Pines have voiced that they do not like the vacation rentals in their neighborhood since they have decided to retire and live there full time. Once our development started taking steps to disallow vacation rentals, several other individuals in surrounding neighborhoods are talking about trying to follow suit.

This is becoming a huge concern not only for the hundreds of home owners who have been renting their cabins out for decades, but also for the surrounding small businesses that rely on tourism and vacation rentals in that area. It has also become a growing problem for Realtors trying to sell houses in that area. When the market is already down, this is just one more deterrent for potential buyers.

I come to you today asking for your support in our endeavor to preserve our fundamental rights as property owners. We have had no choice but to enter into a lawsuit against our HOA in order to stop them from changing our covenants and banning these short term rentals.

As you can imagine, this process is very expensive with the legal fees, not to mention extremely trying on many of us in an already trying time. A large group of owners have banned together to put on a fund raiser dinner and silent auction in hopes of raising funds to continue our fight.

Mt. Springs Lodge has generously offered their facilities to us on Jan. 23rd to hold our fund raiser. Any donation items that your business can contribute to our silent auction table would be greatly appreciated.

  We will be distributing a flier in the upcoming weeks all around Leavenworth/Plain/Lake Wenatchee area and selling tickets to the event. If you would like any more information on this issue, the law suit, or would like to help in any other way, please do not hesitate to contact me. 206-902-8396.

Thank you for your time and attention to this matter.

Sincerely,

 Tabatha Hargis

 Property Manager Fish Lake Cabins

This entry was posted on Wednesday, November 11th, 2009 at 11:31 pm and is filed under Cabins, Community News, Vacation Homes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

1. Chiwawa Community said at January 13th, 2010 at 4:04 pm

   January 13, 2010

   Wilkinson et. al. v. Chiwawa River Pines (Chelan County Superior Court Case No: 09-2-00896-0) / Outcome of Cross-Summary Judgment Motions

   Statement of Facts from the Chiwawa Community Association Board of Trustees

   Background: Chiwawa River Pines is a beautiful planned community consisting of 367 lots located in Leavenworth, Washington. The community is located in an area zoned as Rural Waterfront and is subject to protective covenants. The 1988 and 1991 Amended Protective Covenants restrict use to single-family residential use and prohibit commercial use, nuisance, and offensive use.

   Many owners were troubled by the increasing number of properties being used to generate high volume, short-term occupancy for commercial gain. This issue has been debated by the community for the past few years. In November 2007, the Board sent a survey to owners to collect feedback about nightly rentals and how to proceed. At the annual meeting held on April 26, 2008, the Board reviewed the advisory vote, which decided to separate low-impact, service-oriented businesses from the short-term rental issue and allow the owners to vote on each item on its own merits. At the special meeting held on September 27, 2008, the owners were asked to vote to whether to allow each of the following as an exception to industrial or commercial use: low-impact, service-oriented businesses, long-term rentals (duration longer than six-months), and short-term rental (duration shorter than six-months).
   The owners approved the proposal to allow service-oriented businesses and long-term rentals. The owners did not approve of the exception for short-term rentals. Three hundred and one owners (301) were eligible to vote. Two hundred forty owners (240) voted. One hundred sixty owners (160), an overwhelming majority, chose not to allow short-term rentals as an exception to commercial use.

   The Lawsuit: Nine owners sued the Chiwawa Communities Association for a declaratory judgment to overturn the 2008 Amended Protective Covenants. The Board defended the suit and counterclaimed for declaratory and injunctive relief because it has a fiduciary duty to enforce the Protective Covenants.

   At the heart of this matter is that Plaintiffs and the Association have fundamentally different views on ownership rights. Plaintiffs believe they have property rights that cannot be restricted. Owners, however, do not have unrestricted property rights when they live in a planned community.

   Lawsuits involving covenant interpretation are very case-specific—that is, the outcome depends on the specific facts before the court. The outcome in this current lawsuit may not apply to another planned community with different facts. In addition, Chiwawa River Pines is one of the few planned communities in the area. The ruling in the current case would not apply to properties not subject to restrictive covenants.

   Outcome: On January 5, 2010, Honorable T.W. Small of the Chelan County Superior Court issued an oral ruling on the cross-motions for summary judgment and directed counsel to draft a joint order incorporating his ruling for his review and signature.

   At the start of his remarks, Judge Small provided an analysis of applicable laws. In conflicts between homeowners regarding the interpretation of restrictive covenants, the Court places a special emphasis on arriving at an interpretation that protects homeowners’ collective interests. In construing restrictive covenants, the Court’s primary task is to interpret the drafter’s intent. Extrinsic evidence is admissible to determine the meaning of the specific words and terms used in the covenants. In the case of an ambiguity, the Court will look beyond the document to ascertain intent from the surrounding circumstances.

   The Court found that it was undisputed that the Board took enforcement actions against short-term rentals in the past. The Association submitted a 1987 letter informing an owner that a daily rental was a violation of the Protective Covenants and 1991 Board minutes memorializing the request for an owner to remove a sign for lodging. In addition to these undisputed facts, the Court distinguished the present case from case law cited by Plaintiffs because of the broad language of the Protective Covenants. In Chiwawa, the Protective Covenants not only restrict use to single-family residential use, but there is also language prohibiting commercial use, nuisance, and offensive use.

   In summary, Judge Small ruled that rentals for a duration of less than one month are a commercial use and violate the prior Protective Covenants. He believes the frequency of use does change the residential nature of use. Judge Small, however, also ruled that the 2008 Amendment over-reached in prohibiting rentals for a period of more than one month but less than six months. An express reservation of power authorizing less than 100 percent of property owners to adopt new restrictions is valid, provided such power is exercised in a reasonable manner consistent with the general plan of development. Judge Small found the pre-existing covenants allowed month-by-month rentals; therefore the 2008 Amendment was not a reasonable amendment and the prohibition against short-term rentals for less than six months is invalid.

   Lastly, Judge Small ruled that each party is responsible for their own attorney fees.

   The Association’s attorney is also seeking a clarification from the judge regarding the provision of the 2008 amendment providing an exception for low-impact, service-oriented businesses and the Association’s request for an injunction against Plaintiffs. Another update will be provided shortly, as well as a copy of the final order. The attorneys for both parties are scheduled to speak with Judge Small on January 21, 2010.

   If you would like more information on this topic, please contact the Chiwawa Community Association Board of Trustees at 509-763-4309 chiwawa@nwi.net or on the web at http://www.chiwawariverpines.wordpress.com

   Thank You:

   Board of Trustees, Chiwawa Community Association

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