FILED JULY 10, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SPADER BAY CONDOMINIUM ) No. 40142-1-III OWNERS ASSOCIATION, a Washington ) nonprofit corporation, ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ROBERT J. THOMPSON and AMBER ) THOMPSON, individually and as the ) marital community comprised thereof, ) ) Appellants. )
MURPHY, J. — The Spader Bay Condominium Owners Association (the
Association) is managed by a board of directors (the Board) pursuant to a declaration of
condominium and adopted bylaws. In October 2019, the Board adopted a resolution
related to unit rentals. Robert and Amber Thompson, who jointly own three units, did not
comply with the 2019 resolution. The Association brought suit against the Thompsons for
breach of contract, seeking a declaratory judgment and injunctive relief, and ultimately
moved for partial summary judgment on affirmative defenses and counterclaims asserted
by the Thompsons in their answer to the complaint. The trial court granted partial
summary judgment to the Association, dismissed the Thompson’s affirmative defenses
and counterclaims with prejudice, and ordered the Thompsons to comply with the No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
October 2019 resolution on unit rentals. The trial court later entered a judgment and
decree of foreclosure in favor of the Association that included an award of $58,825.55
in attorney fees and costs.
The Thompsons appeal, arguing there is a genuine issue of material fact as to
whether (1) the Association abandoned its right to control rental operations, (2) the
October 2019 resolution violated the declaration of condominium’s equal treatment
clause, and (3) the October 2019 resolution violated Washington’s Horizontal Property
Regimes Act (HPRA), chapter 64.32 RCW. We disagree and affirm the trial court.
FACTS
Spader Bay Condominiums (Spader Bay), located on the shore of Lake Chelan,
is comprised of 3 buildings with a total of 46 residential resort condominium units. The
Spader Bay Condominium Owners Association is a Washington nonprofit corporation
formed under the HPRA. The Association’s members consist of the unit owners. Since
1986, Spader Bay has operated under the terms of a “Merger and Amendment of
Declarations of Condominium for Spader Bay Condominium Groups I, II, and III”
(the Declaration). Clerk’s Papers (CP) at 33-82 (some capitalization omitted). All units
“shall be held, used, conveyed, encumbered, leased, occupied, rented, and improved
subject to the covenants, conditions, restrictions, and easements stated in this
Declaration.” CP at 44.
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It is undisputed that the Declaration permits unit owners to rent out the units to
others. Section 11.1 of the Declaration states that all Spader Bay “buildings and units are
intended for and restricted to resort use on an ownership, rental, or lease basis, and for
social, recreational, or other reasonable activities normally incident to such use, and for
the purposes of operating the Association and managing the condominium if required.”
CP at 49.
Section 11.2 of the Declaration addresses the rental of units:
All occupancy of units offered for rent by the owners thereof shall be controlled by the Board in the common interest of all owners and in compliance with appropriate laws and ordinances. All units shall be rented through the Board or its designee. The Board shall establish policies and procedures governing the rental units and the management of rental operations and shall control all rental operations including the employment of necessary managerial, administrative and maintenance personnel, procurement of equipment, supplies and services, maintenance of financial books of account, and establishment of checking and savings accounts required for rental operations management. In the rental of units offered for rent by the owners, all owners offering units for rent shall be treated equally and the Board shall supervise rental operations to assure as far as possible fair and equal rental of the units.
CP at 49-50 (emphasis added).
Section 17.1 of the Declaration grants the Board the authority to adopt rules and
regulations for the benefit of the Association:
The Board is empowered to adopt, amend, and revoke on behalf of the Association detailed administrative rules and regulations necessary or convenient from time to time to insure compliance with the general
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guidelines of this Declaration and to promote the comfortable use and enjoyment of the property. The rules and regulations of the Association shall be binding upon all owners and occupants and all other persons claiming any interest in the condominium.
CP at 57 (emphasis added).
Section 17.2 of the Declaration states that the “Board shall have the power and the
duty to enforce the provisions of this Declaration, the Articles, the Bylaws, and the rules
and regulations of the Association, as the same may be lawfully amended from time to
time, for the benefit of the Association.” CP at 58. For any legal action brought
concerning the enforcement or interpretation of the Declaration, it expressly provides that
“the prevailing party shall be entitled to judgment against the other party for its
reasonable expenses, court costs, and attorney[] fees.” CP at 58.
Article 20 of the Declaration addresses any failure of the Board to insist on strict
performance or compliance with the Declaration, bylaws, or rules and regulations
adopted by the Association:
The failure of the Board in any instance to insist upon the strict compliance with this Declaration or the Bylaws or rules and regulations of the Association, or to exercise any right contained in such documents, or to serve any notice or to institute any action, shall not be construed as a waiver or a relinquishment for the future of any term, covenant, condition, or restriction. . . . No waiver by the Board of any requirement shall be effective unless expressed in writing and signed by the Board.
CP at 63 (emphasis added).
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Article 30 is a severability clause:
The provisions of this Declaration shall be independent and severable, and the unenforceability of any one provision shall not affect the enforceability of any other provision, if the remainder complies with the Condominium Statute or, as covenants, effect the common plan.
CP at 75.
Section 14.2 of the Declaration provided for the adoption of articles of
incorporation, as well as bylaws to supplement the Declaration and provide for
administration of the Association and Spader Bay. Consistent with the Declaration,
section 3.2 of the bylaws grant the Board the “powers and duties provided for the
administering authority of the condominium in the statutes and in the Declaration, and all
other power necessary for the administration of the affairs of the Association” and allow
the Board to “do all such acts and things as are not prohibited by statute or by the
Declaration required to be done in another manner.” CP at 87.
The Association’s bylaws “provide for the operation of Spader Bay” and “apply to
the entire condominium, each unit therein, and all common areas and facilities.” CP at 84.
The bylaws state:
All present and future owners, mortgagees and other encumbrancers, lessees, tenants, licensees, and occupants of units, and their guests and employees, and any other person who may use the facilities of the condominium are subject to these Bylaws, the Merger and Amendment to Declarations of Condominium for Spader Bay Condominium Groups I, II
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and III, a condominium, and the rules and regulations pertaining to use and operation of the condominium.
CP at 84.
Article 7 of the bylaws addresses rights of action for noncompliance:
Each owner, the Board, and the Association shall comply strictly with the Declarations, these Bylaws, and with the administrative rules and regulations adopted pursuant thereto, as they may be lawfully amended from time to time, the decisions of the Board . . . . Failure to comply with any of the foregoing shall be grounds for an action to recover sums due, damages, and for injunctive relief, or any or all of them . . . .
CP at 92.
The HPRA requires that each condominium owner “comply strictly with the
bylaws and with the administrative rules and regulations adopted pursuant thereto, as
either may be lawfully amended from time to time, and with covenants, conditions, and
restrictions set forth in the declaration or in the deed to [their unit].” RCW 64.32.060.
Historical enactment and enforcement of rules
During the 1980s, the Association’s Board regulated short-term rentals using
a “‘rental pool’ system.” CP at 391. Either the Board, or their designated rental agent
“BJ Enterprises Ltd,” managed the pool. CP at 391; see also Rep. of Proc. (RP) (Sept. 9,
2021) at 87-88. In the early 1990s, the Association ended the short-term rental pool and
its relationship with BJ Enterprises and, thereafter, allowed unit owners to directly rent
out their units.
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In a declaration submitted in support of the Association’s motion for partial
summary judgment, the president of Association’s Board stated that the Board has
continuously “maintained quality standards for owners who chose to rent their units,
in addition to rules regulating owner and renter conduct while at Spader Bay” since the
1980s. CP at 391. Numerous exhibits were appended to the Board president’s declaration,
including minutes of Board meetings, letters sent from the Board to unit owners or rental
agents, and copies of renters’ rules throughout the years. The preexisting rules included
prohibitions on renters bringing pets, limiting the number of cars and boats per renter per
unit, and setting quiet times, etc.
2019 resolution
Sometime between 2015 and 2016, Spader Bay noticed an increased volume in
short-term vacation renters booking their stay through rental agencies such as “AirBnB”
and “VRBO.” CP at 388. According to the Board’s president, “This new breed of renter
brought new issues to Spader Bay,” and these renters “tended to treat Spader Bay’s
common areas more harshly,” caused “more excessive noise and other conduct issues”
than unit owners and their family, friends, and guests, and required “more of Spader
Bay’s staff time to monitor and manage,” creating “friction between those owners who
rented and those who did not.” CP at 388-89; see also CP at 475. In 2017, the Board
initiated a survey of owners on the short-term rental issue. “The survey results showed
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the vast majority of owners wanted new rules regulating short-term vacation rentals and
stricter enforcement of the new and pre-existing Rental Rules.” CP at 389. In March
2018, once the survey was complete, the Board approved revisions to the short-term
rental rules for the upcoming season. CP at 479.
In October 2019, the Board passed a resolution requiring all owners of a unit,
or their designated rental agent, who intended to rent out their unit beginning in 2020
to: (1) “execute and be bound” by a new “Agreement for Rental of Spader Bay
Condominiums” (the Rental Agreement), (2) pay a $25 per night rental management
fee to help offset Spader Bay’s operational and administrative costs, and (3) have their
renters execute a copy of the revised “Renters Rules” at check-in. CP at 106-07. The
Rental Agreement contained a liquidated damages provision, requiring unit owners to pay
$1,000 should the owner “misstate[] or misrepresent[] the status of a person using their
unit(s) as a “‘Guest’” when that person was actually a “‘Renter.’” CP at 112-13.
The updated “Renters Rules” generally included the same historical rules and
regulations contained in the “Renters Rules” from the years prior, such as forbidding
pets, limiting the number of renters per unit, imposing quiet times, and requiring all
renters and guests to check in with Spader Bay’s property manager upon arrival.
CP at 423-26, 487-93. The 2019 resolution additionally required all renters to “execute
a copy of the Renters Rules” upon check-in with the Spader Bay property manager,
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“evidencing their acknowledgment or receipt of the rules and agreement to be bound” by
them. CP at 107.
According to the Rental Agreement, the updated rules related to short-term rentals
were adopted “to maintain and enhance the value of the Spader Bay Condominiums and
property, and ensure the comfortable use and enjoyment by Owners, Renters, and Guests
of the Condominiums.” CP at 110. The resolution required all owners who intended to
receive rental income from their unit(s) to execute and be bound by the new Rental
Agreement, which was “intended to make the Owners Rules, Renters Rules, and Guest
Rules binding on each Owner, Renter, Guest, and Rental Agent, and to set forth the terms
and conditions applicable to Owners, Renters, Guests, and Rental Agents.” CP at 110.
According to the Association, consent of the owners to the Board’s adoption of the
October 2019 resolution was not required under section 28.1 of the Declaration because
this action of the Board did not amend either the Declaration or the bylaws. Notice of
the adoption of the October 2019 resolution was given to each owner, including the
Thompsons.
The Thompsons
Robert Thompson and Amber Thompson, who are husband and wife, jointly own
three units at Spader Bay. They acquired their first unit in 1986 and two others in 1992.
Beginning around 1993, when BJ Enterprises was no longer the designated rental agent
9 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
for Spader Bay, the Thompsons began regularly renting out their three units through
independent efforts. The Thompsons “personally coordinated, managed, and
administered” the rental of their units from 1993 until 2016, and from 2016 onward,
they hired their own rental manager to take over and oversee their accounts, perform
maintenance on their units, clean the units, and respond to complaints. CP at 524.
Up until the Board’s adoption of the 2019 resolution, the Thompsons abided by
the Association’s rental rules. Thereafter, the Thompsons refused to comply with the new
rules. They refused to sign the Rental Agreement and directed their rental manager not to
sign, taking issue with both the liquidated damages clause and the $25 per night rental
fee, believing “the Board was intending to profit off of the rental of [their] units without
actually providing any of the services it is required to provide under Section 11.2 of the
Declaration.” CP at 525; see also CP at 27-28, 434-35, 445-46. The Thompsons
continued to rent out their property but refused to pay the $25 per night rental fee, and
directed their vacation renters not to check in with Spader Bay’s rental manager and
instead check in with their personal rental manager.
Procedural history
In July 2020, the Association sued the Thompsons for breach of contract, seeking
a declaratory judgment, a preliminary injunction, and an award of damages, attorney fees,
and costs. After the trial court denied the injunctive relief, the Thompsons answered the
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complaint and raised several affirmative defenses and counterclaims that included breach
of contract, promissory estoppel, negligence, and breach of fiduciary duty. The
Thompsons averred that the Declaration does not grant the Association authority to adopt
and enforce rules or, alternatively, that the Association had abandoned its right to enact or
enforce its rules for rental of units. The Association answered the counterclaims and later
moved for summary judgment dismissal of the Thompson’s affirmative defenses and
counterclaims. In response to the summary judgment motion, the Thompsons claimed
that the Association was conflating its history of enacting and enforcing rental rules
with its long-abandoned authority to control occupancy of units rented out by
condominium owners. The Thompsons did not assert in their answer, affirmative
defenses, counterclaims, or response to the Association’s motion for partial summary
judgment, that the Association violated any provisions of the HPRA.
After hearing argument of the parties, the trial court found that the Board
possessed authority to enact and enforce rules for the Association, including rules
regulating rental of the Thompson’s units, and the Association had not abandoned its or
the Board’s authority to enact and enforce rules. The court granted partial summary
judgment to the Association, dismissing the Thompson’s affirmative defenses and
counterclaims. The court further ordered that the Thompsons immediately comply with
the Board’s rules, and found that the Thompsons owed the Association “a per night, per
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unit rental management fee for each rental of one or more” of the Thompsons’ units,
in an amount to be determined at trial or some other disposition. CP at 778. The court
reserved ruling on the amount of attorney fees and costs owed by the Thompsons to the
Association.
The parties later came to an agreement that the unpaid rental management fees
totaled $10,100, and the Thompsons tendered that amount to the Association. The parties
could not come to a consensus on the amount of attorney fees and costs, so the
Association filed a motion to set the amount for attorney fees and costs and to reduce
that amount to a money judgment that included a foreclosure decree. It also moved for
contempt on the basis that the Thompsons were continuing to violate the Association’s
rental rules, including a refusal to execute the Association’s Rental Agreement. The court
declined to find the Thompsons in contempt but awarded the Association attorney fees
and costs in the amount of $58,825.55, and a judgment and decree of foreclosure in that
amount was entered that same day.
On August 30, 2022, the trial court entered an agreed order granting a second
contempt motion filed by the Association. On December 13, 2023, the court entered a
stipulated order of dismissal with prejudice.
The Thompsons appeal from the trial court’s summary judgment dismissal of their
affirmative defenses and counterclaims, and the judgment and decree of foreclosure on
12 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
the award of attorney fees and costs to the Association.
ANALYSIS
Whether there is a disputed issue of material fact as to whether the Association abandoned its right to regulate unit rentals
The Thompsons contend the summary judgment dismissal of their affirmative
defenses and counterclaims was improper because issues of material fact remain as to
whether the Association abandoned its right to regulate rentals under section 11.2 of the
Declaration. The Thompsons argue that (1) the Board surrendered control of unit rental to
the owners in 1993, (2) there is an absence of evidence showing the Board’s attempt to
control rentals between 1993 and 2019, and (3) there is an absence of the legal term
“abandonment” within the Declaration’s no-waiver clause. To these arguments, the
Association responds that it did not surrender its authority to regulate unit rentals, and
instead there is evidence that demonstrates the rental rules were continuously maintained
by the Board.
This court engages in the same inquiry as the trial court when it reviews a trial
court’s grant of summary judgment. Mountain Park Homeowners Ass’n, Inc. v. Tydings,
125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is proper only when
there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Id.; CR 56(c). The moving party bears the burden of proving they are
13 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
entitled to summary judgment as a matter of law. Ross v. Bennett, 148 Wn. App. 40, 49,
203 P.3d 383 (2008). Evidence and all reasonable inferences are viewed in the light most
favorable to the nonmoving party, and all questions of fact are reviewed do novo. Id.;
Mountain Park, 125 Wn.2d at 341.
Abandonment
Whether evidence supports a finding of abandonment is a question of fact, unless
reasonable minds could reach only one conclusion. Green v. Normandy Park Riviera
Section Cmty. Club, Inc., 137 Wn. App. 665, 697, 151 P.3d 1038 (2007); see Mullor v.
Renaissance Ridge Homeowners’ Ass’n, 22 Wn. App. 2d 905, 912, 516 P.3d 812 (2022).
Abandonment of a restrictive covenant is an equitable defense available to prevent
enforcement of a covenant. Mountain Park, 125 Wn.2d at 341-42. Where a covenant has
been “‘habitually and substantially violated so as to create an impression that it has been
abandoned, equity will not enforce the covenant.’” Id. at 342 (quoting White v. Wilhelm,
34 Wn. App. 763, 769, 665 P.2d 407 (1983)). To succeed in a defense of abandonment,
evidence must show that “prior violations by other residents have so eroded the general
plan as to make enforcement useless and inequitable.” Id. “Violations must be material
to the overall purpose of the covenant, and minor violations are insufficient to find
abandonment.” Id. Evidence of only a single violation will not support a finding of
abandonment. Id.; Reading v. Keller, 67 Wn.2d 86, 90, 406 P.2d 634 (1965).
14 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
Here, the Thompsons argue the Board abandoned section 11.2 of the Declaration
in 1993, when the Board allowed individual unit owners to rent their units, and, therefore,
conclude that the 2019 resolution is unenforceable. For ease of reference, section 11.2
states:
All occupancy of units offered for rent by the owners thereof shall be controlled by the Board in the common interest of all owners and in compliance with appropriate laws and ordinances. All units shall be rented through the Board or its designee. The Board shall establish policies and procedures governing the rental units and the management of rental operations and shall control all rental operations including the employment of necessary managerial, administrative and maintenance personnel, procurement of equipment, supplies and services, maintenance of financial books of account, and establishment of checking and savings accounts required for rental operations management. In the rental of units offered for rent by the owners, all owners offering units for rent shall be treated equally and the Board shall supervise rental operations to assure as far as possible fair and equal rental of the units.
CP at 49-50.
It is undisputed that the Board parted ways with its designated rental agent, BJ
Enterprises Ltd., stopped using a rental pool to manage unit rentals, and allowed
individual unit owners to rent out their units themselves. See CP at 391-92. The record
additionally shows that the Thompsons personally coordinated, managed, and
administered the rental of their three units from 1993 until 2016, after which time they
hired a rental agen to oversee their accounts, perform maintenance on their units, clean
the units after the renters left, and respond to renters in the event of complaints. It is also
15 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
undisputed that the Board did not retain control of “all” aspects of rental operations
enumerated in section 11.2.
The Thompsons argue that section 11.2 requires the Board to govern each and
every aspect of rentals, and its failure to do so constitutes abandonment. They assert that
the repeated use of the word “shall” within section 11.2 creates a strict mandate on the
Board, and the use of the word “all” ensures that the Board’s authority reaches all units,
all rental operations, and all owners. The Thompsons claim that this demonstrates the
intent to require the Board to operate each and every aspect of all rentals, including,
but not limited to, “‘the employment of necessary managerial, administrative [and]
maintenance personnel, procurement of equipment, supplies and services, maintenance of
financial books of account, and establishment of checking and savings accounts required
for rental operations management.’” Br. of Appellants at 9 (quoting CP at 49). While the
Board’s “Renters Rules” implemented since the 1980s undoubtedly falls within the
category of rules and procedures intended to be enacted by section 11.2, (1) the Board no
longer controls “[a]ll occupancy of units offered for rent,” (2) “[a]ll units” have not been
“rented through the Board or its designee” since 1993, and (3) “all rental operations”
have not been controlled by the Board since 1993. CP at 49-50.
While the Thompsons are correct that these instances demonstrate certain aspects
of Section 11.2 have, since 1993, not been controlled by the Board, other evidence shows
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that the Board has consistently and continuously adopted, modified, and enforced
“policies and procedures governing the rental units and the management of rental
operations,” CP at 49, in the form of rules for short-term rental of units since the 1980s,
which continued through and after the 1990s. See CP at 453-85 (Board meeting minutes
discussing new rules and enforcement of existing rules from various years between 1990
and 2019); CP at 487-93 (“Renters Rules” from 2015, 2016, 2018, 2019).
The evidence presented to the trial court shows that the Board has over the years
consistently sought to enforce rules for and regulate short-term rentals of condominium
units. See CP at 463 (2000 board meeting minutes stating manual of revised rules and
regulations would be provided to each unit and made readily available for renters and
guests); CP at 464 (2001 meeting minutes updating rules and regulations for owners and
renters); CP at 468 (2008 meeting minutes on issues related to noncompliance by owners
and renters to rules); CP at 470 (2012 meeting minutes asking owners to pass along rules
to renters, and noting a discussion by the Board on adopting a “‘resort fee’” to offset
additional administrative expenses related to rentals); CP at 472 (2016 meeting minutes
noting that updated rules have been distributed with the minutes); CP at 475 (2016
minutes noting that updated owner and rental rules were distributed last month and issues
related to owners and renters smoking on the Spader Bay property); CP at 478 (2018
17 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
meeting minutes noting that both renters and guests of owners are not allowed to have
nonservice dogs on the property).
Board meeting minutes in the record on review that span the years 1990 to 2017
document rental rules over the years that touch on the following subjects (1) the
minimum number of days for a rental period, and the maximum number of guests and the
maximum number of cars and/or boats allowed per rental unit, (2) the general condition
the units are to meet, (3) that amenities should be in good working order, (4) that there be
an adequate supply of dishes, silverware, pots and pans in the units, (5) that all units have
a telephone, (6) the hiring of a property manager to enforce the rules, (7) the prohibition
on renters bringing pets on the premises, and (8) restrictions on smoking. CP at 453-78.
The evidence, therefore, shows that the Board at regular intervals consistently
adopted rental policies and procedures, and that the Board modified and added rules
based on the changing “common interest of all owners.” CP at 49-50.
While an argument could be made that allowing individual owners since 1993 to
rent out their units themselves constitutes a violation of section 11.2 of the Declaration,
the evidence does not show that “prior violations by other residents have so eroded the
general plan as to make enforcement useless and inequitable.” Mountain Park, 125
Wn.2d at 342.
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It is notable that the Thompsons do not address the applicability of other
provisions within the Declaration and bylaws relevant to the Board’s authority to adopt
the 2019 resolution. Declaration sections 17.1 (Adoption of Rules and Regulations) and
17.2 (Enforcement of the Declaration, etc.), and bylaws section 3.2 (Powers and Duties)
grant the Board broad power to adopt, amend, and revoke rules and regulations for
Spader Bay. These provisions provide a basis for new rules, such as the 2019 resolution,
to be adopted by the Board to address issues as they arise, in the same way the evidence
here shows the Board has historically responded to changing circumstances. Even with
the Board not managing each and every aspect of rentals, which arguably is a degree of
erosion to section 11.2 of the Declaration, the Board did not abandon its broad right
granted under separate provisions within the Declaration and bylaws to enact, amend, and
enforce rental rules for Spader Bay. See Hagemann v. Worth, 56 Wn. App. 85, 89, 782
P.2d 1072 (1989) (holding the violation of one covenant did not affect the enforcement of
another covenant in the same agreement); Mountain Park, 125 Wn.2d at 342-43.
No-waiver clause
The Thompsons argue the “no-waiver” clause under section 20 of the Declaration
does not insulate the Board from acts of abandonment. Section 20 reads, in relevant part:
The failure of the Board in any instance to insist upon the strict compliance with this Declaration or the Bylaws or rules and regulations of the Association, or to exercise any right contained in such documents, or to
19 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
serve any notice or to institute any action, shall not be construed as a waiver or a relinquishment for the future of any term, covenant, condition, or restriction.
CP at 63.
The Thompsons argue the doctrine of estoppel, upon which they claim
abandonment is based, differs from the concept of waiver. “‘[W]aiver is unilateral and
arises by the intentional relinquishment of a right, or by a neglect to insist upon it, while
an estoppel presupposes some conduct or dealing with another by which the other is
induced to act, or to forbear to act.’” Blue Ribbon Farms Prop. Owners’ Ass’n v. Mason,
31 Wn. App. 2d 1, 20-21, 547 P.3d 927 (2024) (quoting Bowman v. Webster, 44 Wn.2d
667, 670, 269 P.2d 960 (1954)).
Even assuming the Thompsons’ interpretation of the waiver clause is correct,
the severability clause under article 30 of the Declaration protects the Board from the
possibility that it abandoned its section 11.2 powers. As previously stated, even if the
Board could be found to have abandoned section 11.2, it did not abandon its broad right
under sections 17.1 and 17.2 of the Declaration, and section 3.2 of the bylaws, to enact,
amend, and enforce Spader Bay’s rules and regulations for short-term rental of
condominium units. Therefore, the 2019 resolution remains enforceable.
20 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
Whether the Association’s rental rules violate the Declaration’s equal owner treatment language
The Thompsons argue that even if the Board did not abandon its right to regulate
rentals, its adoption of the 2019 rental regulations violated the equal owner treatment
language in section 11.2 of the Declaration. To this argument, the Association responds
that the equal owner treatment language does not require the Association to have
identical rules for short-term and long-term rentals, but, rather, provides that the
Association shall treat owners equally when the Association, or its designee, books
renters into units. We agree with the Association’s interpretation of the equal owner
treatment language.
The primary objective in interpreting restrictive covenants is to determine the
intent of the drafting parties. Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669 (1997).
Courts “place ‘special emphasis on arriving at an interpretation that protects the
homeowners’ collective interests.’” Id. at 623-24 (quoting The Lakes at Mercer Island
Homeowners Ass’n v. Witrak, 61 Wn. App. 177, 180-81, 810 P.2d 27 (1991)). In
Washington, “the intent or purpose of the covenants, rather than free use of the
[property], is the paramount consideration in construing restrictive covenants.” Id. at 623.
“While interpretation of the covenant is a question of law, the drafter’s intent is a
question of fact.” Ross, 148 Wn. App. at 49. “But where reasonable minds could reach
21 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
but one conclusion, questions of fact may be determined as a matter of law.” Id. at 49-50.
Courts must consider the plain language of the covenant and the written instrument as a
whole. Wilkinson v. Chiwawa Cmtys. Ass’n, 180 Wn.2d 241, 250-51, 327 P.3d 614
(2014).
Here, the relevant language in section 11.2 of the Declaration provides, “In the
rental of units offered for rent by the owners, all owners offering units for rent shall be
treated equally, and the Board shall supervise rental operations to assure as far as
possible fair and equal rental of the units.” CP at 49-50 (emphasis added). This clause
applies only to the equal treatment of all owners who offer their unit for rent. The clause
does not provide that all renters or rental-types, i.e., short-term and long-term, must be
treated equally.
Further, the inclusion of the phrase “as far as possible” in section 11.2 of the
Declaration, CP at 50, is an indicator that the provision is qualified. “‘Central to the
concept of condominium ownership is the principle that each owner, in exchange for the
benefits of association with other owners, “must give up a certain degree of freedom of
choice which he [or she] might otherwise enjoy in separate, privately owned property.”’”
Shorewood W. Condo. Ass’n v. Sadri, 140 Wn.2d 47, 53, 992 P.2d 1008 (2000)
(alteration in original) (quoting Noble v. Murphy, 34 Mass. App. Ct. 452, 456, 612
N.E.2d 266 (1993)). Additionally, the HPRA subjects all owners to the chapter and
22 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
“to the declaration and bylaws of the association of apartment owners adopted pursuant
to the provisions of this chapter.” RCW 64.32.250(1). With this in mind, and in light of
the emphasis on protecting the collective interests, the equal owner treatment language in
section 11.2 is read as allowing rentals, but subject to rules or regulations that serve the
collective or common interests of the condominium owners, the Declaration, the bylaws,
and the HPRA.
As such, applying restrictions or limitations on short-term rentals does not violate
the provision on equal treatment owners, so long as the owners are treated equally in the
application of the rules, the rules serve the common interest of Spader Bay, and are
within the bounds of the Declaration, the bylaws, and the HPRA. There is no evidence
that the Association applied its rules unequally.
Whether the Association’s adoption of changes to rental rules in October 2019 violated the HPRA
The Thompsons claim the Board’s failure to record an amended Declaration
adopting changed rental rules and regulations violates the HPRA and, therefore, the
changes are unenforceable. In response, the Association first urges this court to decline
review of this issue on the basis that the Thompsons raised this issue for the first time on
appeal. Alternatively, the Association argues that even if this court were to consider this
23 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
argument, the 2019 resolution does not prohibit rentals and, therefore, there was no
violation of the HPRA.
“Issues and contentions neither raised by the parties nor considered by the trial
court when ruling on a motion for summary judgment may not be considered for the first
time on appeal.” Green, 137 Wn. App. at 687; see RAP 9.12. “‘The purpose of this
limitation is to effectuate the rule that the appellate court engages in the same inquiry as
the trial court.’” Gartner, Inc. v. Dep’t of Revenue, 11 Wn. App. 2d 765, 777, 455 P.3d
1179 (2020) (quoting Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 462, 909
P.2d 291 (1996) (per curiam)).
The Thompsons argue RAP 9.12 only requires there be evidence “on file” with
the trial court for this court to grant review of that issue. The Thompsons rely on Keck
v. Collins, 181 Wn. App. 67, 325 P.3d 306, 313 (2014), in support of their argument.
Keck, however, discussed whether evidence could be reviewed by the appellate court,
not whether an issue not raised with the trial court could be reviewed on appeal. Id. at 81.
The Thompson’s argument is unhelpful in the context in which it is made.
In this case, neither the Association nor the Thompsons made any arguments
based on the HPRA in their summary judgment submissions. However, the HPRA was
24 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
raised in arguments by both parties in relation to the Association’s unsuccessful motion
for injunctive relief. 1 As the HPRA was raised in the trial court, we review it on appeal.
“All condominiums are statutorily created.” Shorewood, 140 Wn.2d at 52. The
Spader Bay Condominiums was formed in 1986, and is governed by the HPRA. As the
Thompsons argue that in granting partial summary judgment the trial court relied on an
incomplete recitation of the law in Shorewood, that is where we begin our analysis.
In Shorewood, a condominium owner disputed the enforceability of an amendment
to the bylaws of a condominium owners’ association that prohibited, with limited
exceptions, rental or leasing of condominium units. Id. at 50. The declaration that
established the condominium under the HPRA already restricted the condominium to
residential purposes only and units to single-family use, but allowed rental and leasing
of units as long as the rental or leasing term exceeded 30 days. Id. After concerns were
raised about rentals and leasing diminishing the value of the condominium units, the
association’s board recommended an amendment to the bylaws to prohibit unit rental or
leasing. Id. The bylaw amendment was approved by over 70 percent of the condominium
1 In a declaration submitted in support of the Association’s motion for a preliminary injunction, Spader Bay’s property manager appended materials purportedly distributed by the Thompsons to other condominium owners, prior to the initiation of litigation, arguing that the Board’s adoption of the October 2019 resolution was in violation of the HPRA. See CP at 139, 149-56.
25 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
owners. Id. The Supreme Court held that the “[HPRA] does not allow an association of
apartment owners to restrict leasing in a bylaw where the declaration itself permits
leasing.” Id. at 57. The Supreme Court declared the bylaw amendment prohibiting rental
and leasing of units invalid and unenforceable. Id.
The Thompsons claim that the Board’s 2019 resolution constituted a new rental
regulation regime, entirely separate and unrelated to the expressly defined section 11.1
“purposes,” and the rental “controls” originally identified in section 11.2 of the
Declaration. The Thompsons argue that the following apply only to short-term rentals:
(1) owners to pay $25 per night fee, (b) renters to check in with the Spader Bay property
manager before assuming occupancy, and (3) owners to sign an “Agreement for Rental,”
containing liquidated damages. Therefore, the Thompsons argue that the Association was
required under Shorewood to first amend the Declaration for the 2019 resolution to be
enforceable.
Unlike Shorewood, where the condominium association sought to prohibit all
rentals and leasing, which was contrary to the stated purposes laid out in that
condominium association’s declaration, the Association here did not seek to ban unit
rentals. Rather, the Association added conditions for unit rentals with penalties identified
should an owner not comply.
26 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
Section 11.1 of the Declaration permits the “rental” or “lease” of units, without
limitation. CP at 49. Section 11.2 places some limitations on rentals and establishes that
all rental operations and management are subject to the Board’s control, “including the
employment of necessary managerial, administrative and maintenance personnel,
procurement of equipment, supplies and services, maintenance of financial books of
account, and establishment of checking and savings accounts required for rental
operations management.” CP at 49.
A general term used in combination with specific terms will be interpreted to
include “only those things that are in the same class or nature of the specific ones.”
Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 716, 334 P.3d 116 (2014).
As applied here, the $25 per night fee goes toward offsetting property management costs.
This is related to the “employment of necessary managerial” personnel. Requiring guests
to check in with management does not place a limit on use.
With regard to the liquidated damages provision in the Rental Agreement, the
purpose is to require compliance with the renters rules by both renters and unit owners.
If the rules are followed, the unit owners are free to rent. Article 17 of the Declaration
expressly grants the Board the power to “adopt, amend, and revoke on behalf of the
Association detailed administrative rules and regulations necessary or convenient from
27 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
time to time to ensure compliance with the general guidelines of this Declaration.”
CP at 386. The liquidation damages provision falls within this authority.
In opposition to the Association’s motion for attorney fees/costs and for contempt,
Robert Thompson submitted a declaration where he appended rules for owners, owners
who rent, renters and visitors dated March 8, 2022. The Thompsons point out that the
Association now prohibits any rentals around the Independence Day and Memorial Day
holidays. These rules postdate the order for summary judgment at issue in this appeal.
As the Thompsons did not challenge these rules in the trial court, they may not now
challenge them for the first time on appeal. See RAP 9.12.
To the extent the Board’s 2019 resolution places restrictions on use, the
restrictions imposed are sufficiently within the limitations proscribed within the
Declaration and bylaws. As such, the 2019 resolution does not run afoul of the HPRA.
ATTORNEY FEES
The Thompsons request an award of attorney fees and costs under RAP 18.1 and
section 19.5 of the Declaration. They also seek reversal of the trial court’s attorney fee
and cost award to the Association. The Association requests an award of attorney fees
and costs pursuant to RAP 18.1 and sections 17.2 and 19.5 of the Declaration.
“‘A contractual provision for an award of attorney[] fees at trial supports an award
of attorney[] fees on appeal under RAP 18.1.’” Thompson v. Lennox, 151 Wn. App. 479,
28 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
491, 212 P.3d 597 (2009) (quoting W. Coast Stationary Eng’rs Welfare Fund v. City of
Kennewick, 39 Wn. App. 466, 477, 694 P.2d 1101 (1985)).
Section 19.5 of the Declaration provides:
In any action to collect delinquent assessments, the prevailing party shall be entitled to recover as part of its judgment a reasonable sum for attorneys’ fees and expenses reasonably incurred in connection with the action, in addition to taxable costs permitted by law.
CP at 62.
Section 17.2 of the Declaration provides in relevant part:
If a legal action is brought to interpret or enforce compliance with the provisions of this Declaration, the Articles, the Bylaws, or the rules or regulations of the Association, the prevailing party shall be entitled to judgment against the other party for its reasonable expenses, court costs, and attorney’s fees in the amount awarded by the court.
CP at 58.
The Association is the prevailing party on review. Pursuant to Sections 17.2 and
19.5 of the Declaration, we award the Association its attorney fees and costs on appeal.
The Thompson’s request for attorney fees and costs is denied.
CONCLUSION
We affirm the trial court’s order granting partial summary judgment to the
Association, its order awarding attorney fees and costs, and judgment and decree of
foreclosure. We also award the Association its reasonable attorney fees and costs on
29 No. 40142-1-III Spader Bay Condo. Owners Ass’n v. Thompson
appeal, subject to its compliance with RAP 18.1(d).
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Murphy, J. WE CONCUR:
____________________________ Lawrence-Berrey, C.J.
____________________________ Cooney, J.