Judge says DK residents responsible for dues
November 14, 2008 · Updated 2:27 PM
t Judge: There were ‘arguments for both sides.’
PORT ORCHARD — Superior Court Judge Russell Hartman found trials involving homeowners associations are difficult to resolve, especially when it’s Hansville’s Driftwood Key Club.
On Wednesday, Hartman’s orders were filed with the Kitsap County Clerks Office with arguments favoring both the Driftwood Key Club (DKC) and it’s plaintiff, four Driftwood Keys residents.
The residents, Sharon and husband Michael Feola, Linda Smith and George Willis questioned the DKC’s authority to enforce payment of annual dues by placing liens on properties.
According to court documents, they do not use the club’s amenities — for which the annual dues are collected — and they think it’s unfair to pay them.
The residents’ complaints worked through the courts until landing in Superior Court Sept. 19. The final orders were given in court Nov. 7.
According to Hartman’s filed orders, as long as the plaintiffs own property in Driftwood Key they are liable for all dues and assessments levied by DKC pursuant to its articles of incorporation and bylaws.
Although Hartman’s final ruling favors DKC, he stated DKC covenants do not expressly mandate membership or establish personal liability to pay assessments.
“There is no expressed language mandating membership in Driftwood Key Club or addressing assessments to maintain common areas for the benefit of development,” he said.
However, he said residents knew, or should have known, they were liable at the time of purchasing the property “as reflected in closing statements when they bought their lots, and all of them paid the assessments when billed for a period of years before challenging them.”
Although the covenants weren’t expressly written, Hartman said according to case law, an expressed contractual relationship between DKC and lot owners should be implied because the value of the properties benefit from membership, including the community pool, club and marina.
Although Hartman ruled partly in favor of DKC, no attorney fees were granted.
While reviewing the legal proceedings in the district court, Hartman alluded if plaintiffs decide to press forward, a different ruling might be obtained at the Superior Court level.
“One thing that I noticed and smiled about a couple of times as I was reading through the record, was the oral decision of District Court Judge Holman when he was doing the final small claims court proceeding in this case,” Hartman said. “And (Holman) made the observation in his oral ruling that oftentimes in judicial proceedings everybody is wrong except the Supreme Court. And I don’t know, but perhaps this is — this might be one of those cases.”
The residents’ attorney Gerald Kearney was unable to return calls before press time.