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When the ‘Roof Over Our Heads’ is Temporarily Removed


Valerie Farris Oman


We’ve all heard the adage that “possession is nine tenths of the law.” Although I was surprised to learn in law school that this cliché does not always hold true, a recent Washington Court of Appeals case appears to affirm that saying. In Viewcrest Condo Ass’n. v. Robertson, No. 74115-2-I, 2016 WL 7470025 (Wash. Ct. App. Dec. 27, 2016), the Court held that a condominium unit owner cannot be forced to move out or pay rent during the redemption period after judicial foreclosure by the association. As it turns out, when dealing with the homestead protections afforded to homeowners under Washington law, possession is key in determining a homeowner’s rights.


In Viewcrest, Robertson stopped paying assessments about a year after purchasing her Unit. Roughly four years later, the Association filed a lawsuit to foreclose its lien for unpaid assessments against the Unit. The Association filed a judgment and order of foreclosure and then caused the Sheriff to conduct an auction of the Unit (a Sheriff’s Sale). The Association purchased the Unit at auction, and offered the owner to opportunity to stay in her Unit during the one-year redemption period following the Sheriff’s Sale. In return, the Association required that Robertson pay fair market value rent which would be credited towards any future redemption by Robertson. She never responded to the Association’s offer.


Viewcrest then sought a court order (known as a “writ of assistance”) to forcibly remove Robertson from her Unit. Viewcrest pointed to language in the Condominium Act – which states that a condominium lien is not subject to the provisions of the Homestead Act – and argued that since the lien was not subject to homestead protections, the Court must conclude that the owner was not entitled to rent-free possession of her condominium during the redemption period. The trial court commissioner agreed with the Association and issued the writ of assistance. Robertson appealed that decision.


The Court of Appeals reversed after concluding that, when read together, the Condominium Act, the Redemption Act, and the Homestead Act do not specifically, clearly, and definitely limit a condominium owner’s right to homestead “for the purposes of the right to possession during the redemption period.” According to the Court, without clear language speaking to the right of possession during the redemption period, the Court was then required to review legislative history and rules regarding the interpretation of statutes, and attempt to achieve a “harmonious reading” of the three Acts in question.


32 Community Associations Journal | July/August 2017


The Court applied several well-established principles in Viewcrest, including the following: “Homestead statutes are favored in the law and should be liberally construed.” But, on the other hand: “a statute creating a lien is in derogation of the common law and must be strictly construed.” In other words, the Court was required to liberally apply the homestead protections, which are favored by public policy, and at the same time was required to interpret the statute creating the lien (the Condominium Act) as narrowly as possible because liens do not enjoy the same favored status.


The Court held that none of the Acts listed above explicitly state that a condominium owner was required to pay rent during the redemption period. As a result, the Court reversed the lower court’s decision to grant the writ of assistance, finding that Robertson had the right to remain in her former unit for the redemption period without paying rent to the Association.


The key word in the last sentence of the preceding paragraph is remain – the Court makes it clear that “if a lien is foreclosed upon a unit not occupied by the owner, there is no right to possession during the redemption period.” This case truly does, then, turn on the question of whether the owner is in possession at the time of foreclosure. If the owner does not live in the Unit at the time of foreclosure, we hope that the Court would affirm the purchaser’s right to possession during the redemption period.


The Court did not ignore the Association’s arguments in Viewcrest, but stated that such policy arguments were better suited for the legislature. In the Court’s view, the policies protecting homesteads (and limiting liens) were more compelling.


This case represents a change in how condominium lawyers must advise their clients when considering a Sheriff’s Sale of a condominium unit. Where before, it was possible to evict the owner during the redemption period, this case clearly erases that option. Thankfully, it comes at a time when property values are on the rise, delinquencies in general are declining, and there are other considerations in favor of condominium association foreclosures in some situations. If you’re wondering how this case might affect actions contemplated by your Association, be sure to speak to your association attorney about Viewcrest.


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