I have Association clients whose (usually newer) Board members have decided to enforce their CCRs to resolve longstanding violations. They have asked me whether there is a “Statute Of Limitations” that might bar covenant enforcement action after a certain number of years have passed.
While there is a 6-year Statute Of Limitations from date of breach/default respecting written contracts (RCW 4.16.040) and a 10-year Statute Of Limitations on recovery of title to real estate (RCW 4.16.020), there is no specific Statute Of Limitations imposed by statutory or case law governing covenant enforcement by Condominium Owners or Homeowners Associations or (“COAs” or “HOAs”). I refer to the written contract Statute Of Limitations, because CCRs are of course in writing and have some qualities in common with contracts. I refer to the real estate Statute Of Limitations, because CCRS attach to the real estate, encumber title to the homes/units in the community and also provide in some cases for foreclosure enforcement remedies.
While there is no specific Statute Of Limitations applicable as a time bar to CCRs enforcement, there are legal doctrines under Washington case law that serve a similar purpose. These are the doctrines of “laches” & “abandonment”.
A court can refuse to enforce CCRs under the “laches” doctrine when so much time has time has passed without enforcement action that the Court deems it inequitable to permit current enforcement, because enforcement after the long delay would be unjust or would create an unjustifiable hardship for the violator.
The “abandonment” doctrine, when applicable, will bar enforcement when any particular CCRs provision had for so long been unenforced in the community as a whole that in the opinion of the Court the community has in effect “abandoned” that provision. Once considered abandoned, the provision cannot be resurrected for enforcement purposes in the face of a longstanding history of violations going ignored.
There is no specific time frame for these two doctrines and their application is fact-specific. On the other hand, Washington Courts have been very slow to invoke these doctrines as there is a strong judicial bias in favor of upholding covenants with Washington Court decisions generally not insisting on prompt or strict enforcement in order to avoid the covenants becoming invalid.
Advice: I recommend to all of my Association clients that they take some type of enforcement action with respect to CCRs violations within a reasonable time or risk the provision in question being considered invalid in the future due to non-enforcement. Board members have a legal duty to enforce the CCRs and failing to do so is not only a breach of that duty, but it also creates a risk of the invalidation of the unenforced provisions.
If you have questions about this issue or any other Condominium Owners or Homeowners Association concern, I would be pleased to assist.