Homeowners in subdivisions in Washington State have been protected for the last 10 years by a watershed decision, Wilkinson v. Chiwawa Communities Ass’n, 180 Wn.2d 241, 256, 327 P.3d 614 (2014). It's one of the cases in the nationwide majority which holds that owners who purchased important rights reflected in deed restrictions (restrictive covenants) can't have those rights taken away if a majority of the subdivision owners vote to amend the deed restrictions. The Washington Legislature later included a similar protection in the laws governing homeowners' associations and subdivisions.

(In Texas, notably, the courts don't seem to care and don't follow Wilkinson. I've been losing on that issue in case after case, but the Texas Supreme Court hasn't yet weighed in.)

I've met with several clients here in Washington State who've been threatened by their neighbors with an amendment designed to curtail leasing rights — the hot-button issue. I've been able to point to Wilkinson and the protection it affords existing owners, and until recently, I could point to Washington State's subdivision laws.

But in a worrisome development, in mid-2024, the Washington Legislature deleted the express protection for the rights of existing owners as against amendments which would prejudice their rights. It was part of a general cleanup of Washington State's HOA laws, but the deletion is inexplicable. It looks to me like a special-interest insertion, but I haven't been able to run down how or why the change was made.

In the meantime, Wilkinson remains good law in Washington State, and even though there are judges who clearly don't like it (see Twin W Owners' Ass'n v. Murphy, 26 Wash. App. 2d 494, 511, 529 P.3d 410, 419, review denied, 534 P.3d 807 (Wash. 2023), homeowners can rely on it for the time being. Now, the Washington Supreme Court could undo its own decision, but boy, that would be harsh — people have been relying on it for 10 years. So it would seem to me that any change would have to come from the Legislature. Given the recent deletion of the Wilkinson protection from the HOA laws, however, it's quite possible that special interests are trying to undo Wilkinson legislatively. I am unclear who those special interests are, since it would seem abundantly clear that taking away existing rights from people who spent money on property in reliance on those rights could affect anyone. But then again, I've heard HOA lawyers stridently defend the ability of a majority to screw a minority, so what do I know? Read More…