Douglas N. Owens P.S.

Attorney At Law -  Your Legal Resource
 1610 Commercial Ave., Suite 207
Anacortes, WA 98221

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            In land use matters, the conventional wisdom is that it is difficult to “fight city hall’ in the sense that the costs of the fight can overwhelm the benefits, and market conditions can change dramatically due to the passage of time during the contest.  A recent Supreme Court case showed that sometimes the fight is worth pursuing despite these obstacles.
            Normally, land use decisions can be appealed under LUPA, the Land Use Petition Act.  Appeals under LUPA are limited to determining whether the local government’s decision was based on unlawful procedure, an erroneous interpretation of the law, was outside the agency’s power, was clearly erroneous based on the evidence or violated an appellant’s constitutional rights.  This recent case involved an appeal under LUPA and also a more unusual lawsuit for damages to the property owner that resulted from the two years that had been consumed in battling opponents in the administrative process including activists and officials of government agencies, and which delay had ended the business that would have used the permitted land.
            The case began with a company called Citifor which had manufactured munitions on property in Thurston County that was located on or near a significant prairie oak-wetland habitat, and which obtained from Thurston County a twenty year permit to engage in gravel mining on the site in 2005.  The permit was issued after negotiations with environmental opponents of the mine, one of which withdrew its opposition in exchange for concessions by Citifor as to the scope of mining and restoration activities after mining.  However before mining began Citifor sold the land with the permit to the Port of Tacoma for its use in building a freight transfer location.  The freight transfer location was never built and so the Port of Tacoma negotiated with a company called Maytown to sell the property and based on the assurance to Maytown by the Thurston County Department of Natural Resources that the permit was still valid, Maytown bought the property in 2009.
            Maytown’s problems after its purchase centered on four issues: an environmental opponent (not the one that had negotiated with Citifor) challenged the validity of the permit; because of the delay between the permit’s issuance and the expected commencement of mining certain water quality deadlines had already passed; there was a discrepancy between the type of water quality testing required by the permit and the groundwater monitoring plan; and the permit was due for a five year review by a Department hearing examiner.
            Maytown had proposed some amendments to the conditions in the permit to reflect changed circumstances but once the extent of the legal campaign against the mine became apparent, Maytown withdrew all of the proposed amendments except two that dealt with the timeliness of the water quality measurements.
            During the two year administrative review period, decisions were made by the Department and appealed to a hearing examiner and then to the Department’s Board of Commissioners, all within Thurston County local government, and all during a time when according to the Supreme Court, at least two of the County Commissioners had adopted a plan to try to torpedo the mine for political reasons.
            Accordingly, after the internal county appeals had been exhausted (at which one of the environmental groups that had negotiated and agreed with Citifor participated as a mine opponent) and then the LUPA appeals to Superior Court had also been exhausted, and Maytown and the the Port of Tacoma had largely been vindicated, the victory was a Pyhrric one because the mining market had changed and the business failed.  So the Port of Tacoma and Maytown sued the county for damages resulting from the intentional misuse of government processes to interfere with a valid permit for the use of land.
            The jury agreed with Maytown and awarded $13.1 million in damages against the county, and the county appealed to the Supreme Court.  Other than on the issue of whether the trial court could award Maytown damages for its attorney’s fees in the administrative process, the Supreme Court upheld the lower court.  This case should hearten property owners who face bureaucratic opponents over land use.
            The foregoing is not intended as legal advice and should be considered as educational only.

            Some investors these days look for opportunities to obtain residential properties in foreclosure sales, including trustee’s sales under the Deed of Trust Act.  The Deed of Trust Act specifies periods that must elapse between the notice of the sale and when the sale can legally take place.
            Sometimes the borrower who is in financial distress will file a petition in bankruptcy after the notice of trustee’s sale has been recorded but before the sale takes place.   This may be an attempt by the borrower to stave off the trustee’s sale or for other reasons.  The filing of the petition invokes the automatic stay provisions of bankruptcy law, making it illegal for the trustee’s sale to be held as long as the bankruptcy case is pending in the bankruptcy court.
Unless the petition is deemed meritorious by the bankruptcy court, it will be dismissed. This type of situation can present a quandary for the investor who attends and bids at the trustee’s auction after a petition in bankruptcy by the borrower has been dismissed.  A recent case in the Court of Appeals considered such a case in which the borrower filed a petition in bankruptcy the day before the scheduled trustee’s sale and after the petition was dismissed, the trustee’s sale which had been continued by the trustee, was rescheduled and went forward, resulting in the borrower’s loss of the home.
The borrower then sued the lender and the purchaser at the trustee’s sale and the trustee, arguing that the trustee was required to send out a new notice of trustee’s sale, giving forty-five days’ notice after the dismissal of the bankruptcy petition before the sale could legally go forward.  The borrower also contended that the continuance of the trustee’s sale by the trustee violated the bankruptcy stay, and for both of these reasons asked that the sale be set aside by the court.
The Court of Appeals analyzed the borrower’s first argument based on two different statutes. The first statute says that when a bankruptcy petition is filed by the borrower and then later dismissed the trustee can choose to issue a new notice of trustee’s sale and the date of the sale cannot be fewer than forty-five days from the date the bankruptcy petition is dismissed.  The second statute says that the first statute is permissive only and does not apply when a trustee’s sale has been properly continued for a period not exceeding one hundred twenty days.  Because the trustee in this case had properly continued the sale after the filing of the bankruptcy petition for about fifty-eight days, the court held that the trustee was not required by the Deed of Trust Act to record a new notice of trustee’s sale.  
The Court of Appeals considered the borrower’s second argument under a case decided by the federal appeals court for the Ninth Circuit.  That case said that the automatic stay in bankruptcy is not violated by any action of the lender that does not change the status quo or give the lender some advantage over the borrower or harass or interfere with the borrower.  The Ninth Circuit court held that a continuance by the lender of the date of the trustee’s sale by publishing a notice of postponement of the sale did not create any advantage in the lender or otherwise prejudice the borrower while the bankruptcy was pending and therefore such a postponement did not violate the automatic stay.
The Court of Appeals therefore concluded that the borrower’s second argument was without merit and affirmed the dismissal of the lawsuit.  The court rejected the borrower’s argument that the “permissive” statute described above did not apply since according to the borrower the trustee lacked power to continue the sale due to the bankruptcy stay and must necessarily issue a new notice.  
The teaching of this case is that while it is important to keep abreast of any bankruptcy filings by the borrower that affect a trustee’s sale of property in which an investor is interested, that due diligence includes reviewing how the trustee has reacted to the bankruptcy filing.
The foregoing is intended to be educational and should not be considered legal advice.


A recent case in the Court of Appeals demonstrates that despite a perception that the principle of "let the buyer beware" no longer applies in real estate transactions, the doctrine has yet some life in Washington. The case involved a Canadian couple who wanted a second home in the Blaine area. The facts of the case tend to build sympathy for the purchasers of the house. The sellers were a licensed real estate broker and his wife. Prior to the sale the seller both personally and with a contractor did superficial repairs to several significant areas of rot and moisture intrusion into the home, which were designed not to actually correct the problems but to conceal them from view. The problems included rotten flooring in a bathroom, rotten floor joists that were "sistered" with joists that were useless because they did not reach the girder joist, and use of interior trim on the exterior to conceal siding problems. The sellers also provided incomplete seller disclosure forms and when the buyers asked follow up questions and requested a copy of the prepurchase inspection report before the sellers' own purchase of the house, they failed to respond.

The buyers had their own prepurchase inspection done that resulted in a report of several minor areas of rot that were found by the inspector. Many of the areas of rot had been concealed by the sellers and were not discovered by the inspector. The buyers, rather than follow up the inspection report with a request for more inspection or questions about the rot that was discovered, went ahead and purchased the home. The transaction was seller financed after a substantial down payment.

After the closing of the sale, the new owners discovered potato bugs that infested the home and could not seemingly be eradicated, and once they removed some ceiling tiles insulation and water poured out from the attic. A mold eradication company could not guarantee elimination of mold because of the structural problems that allowed moisture to enter the house. A new inspection following these events discovered the true extent of the rot and the measures that had been taken to conceal the damage from inspection. The seller's contractor testified at the trial that the seller had instructed him not to repair but to conceal the damage because the seller did not want to pay the cost of repair. The buyers found through a contractor that it would cost them more to repair the damage than it would to tear the house down and build a new house. They sued the sellers.

The lower court sided with the buyers, and decided that the sellers had committed fraudulent concealment, negligent misrepresentation, violation of the Consumer Protection Act and violation of a real estate broker's duties as the seller of his own property. The lower court awarded the buyers damages for the cost to demolish and rebuild the house, emotional distress and Consumer Protection Act treble damages and attorneys' fees.

The Court of Appeals reversed the lower court and ruled for the sellers. The appeals court said that all of the buyers' claims included the element that they had the right to rely on the sellers' statements about the condition of the house but that in this case because their own prepurchase inspection put them on notice of the existence of rot, they had the duty to inspect and inquire further and did not therefore have the right to rely on the sellers' statements. The court said that the fact that the extent of the rot was much greater than the buyers had anticipated from their prepurchase inspection did not give them the right to sue the sellers. Only if the buyers had shown that further inquiry or inspection before they purchased the house would have been fruitless, could they have maintained their lawsuit, according to the court. The buyers did not make this showing.

The outcome of the case was that the buyers had to demolish the house and they had defaulted on the purchase loan so the court decided that they were liable to the sellers for the unpaid balance on the loan plus the eighteen percent interest that the promissory note provided for in case of default. The facts of this case may seem extreme in that a failure by buyers to follow up on a report of minor problems resulted in a loss of the entire investment where the major problems were intentionally concealed by the sellers. The case teaches that it is important to review critically inspection reports and follow up on any discrepancies.

The foregoing is intended for education and should not be considered legal advice.


Douglas Owens Attorney Seattle

Douglas N. Owens

1971 Graduate of University of Michigan Law School, twelve years service as Assistant Attorney General, thirty-five years private practice