The month of May showed a mixed bag of real estate sales statistics for the Seattle area, with an increase in pricing, but softening of inventory. Apparently, the small bounce in pricing is related directly to the impact of the tax credited offered by the federal government. Now that it has expired (or is expiring as the last sales close), it will be interesting to see the impact.
One of my favorite websites I visit to keep a pulse on the Puget Sound residential real estate market is the Seattlebubbleblog. Its founder and editor is Seattle resident named Timothy Ellis who goes by the blog name “The Tim.” http://seattlebubble.com/blog/
The blog has daily posts which include some great graphs, charts and analysis of the Puget Sound real estate market. What makes the posters on the Seattle Bubble Blog unique is their credibility. They were one of a few vocal media sources in Washington State that consistently and loudly predicted the current real estate crash before it happened. In addition to good posts and analysis by “The Tim,” the comment section provides a lively discussion about Puget Sound real estate issues. *Be aware homeowner: many of the comments made are from bloggers who predict continued steep declines in the Puget Sound real estate - so the blog isn’t for the faint of heart.
The effect of local and federal laws as they relate to the residential real estate market in the Puget Sound area are also frequently discussed by the blog posters and authors with links to news articles and additional resources.
In Washington State, the attorney-client privilege is defined by RCW 5.60.060(2), which provides as follows: An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
The purpose of the privilege is to encourage full and uninhibited communications between attorney and client. Thus, although the statute speaks only to whether the attorney may be 
questioned about communications with a client, the statute has been interpreted to restrict questioning of the client as well. In a nutshell, the privilege bars evidence of communications between attorney and client only when the communications were intended as confidential.
The client is the holder of the attorney-client privilege. That is to say that only the client may give consent for the attorney to divulge confidential communications. However, the client may waive the privilege in situations where they bring a third party into closed door conferences with the attorney, share the privileged communications with a third party, or confer with the attorney where the conversation may be heard in the open by the public. Other situations of waiver include the client commencing an action against the attorney, and in a criminal case, a plea of insanity or diminished capacity waives the attorney-client privilege.
A corollary to the attorney-client privilege is the ethical rule governing the confidential nature of the attorney-client relationship. The Rules of Professional Conduct (RPC) govern the attorney-client relationship. Once such a relationship has been formed, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is reasonably necessary to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing a crime, to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services, to secure legal advice regarding compliance with the rules, to establish a claim or defense on behalf of the lawyer in a controversy between the client and attorney, to comply with a court order, or to inform a tribunal about any client’s breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary. RPC 1.16.
Even where an attorney-client relationship has not yet been formed, but the prospective client discusses with a lawyer the possibility of forming such a relationship, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, with limited exceptions found in RPC 1.9. RPC 1.18.
In a recent summary judgment motion, the main topic at issue was whether the famed Mike M. Johnson case applied (Mike M. Johnson v. County of Spokane, 150 Wn.2d 375, 78 P.3d 161 (2003)). As many will recall, Mike M. Johnson ("MMJ") states that contract provisions are enforceable unless waived by the provision's benefit ting party. This waiver can be implied through conduct or actions, however, if it is so implied, the conduct/action must be unequivocal for waiver to be valid. MMJ dealt specifically with a contract provision regarding the procedure by which a contractor could receive compensation for changes in the contract (or "change orders").
The contract owner in MMJ at almost every turn notified (often in writing) the contractor that if it wanted additional consideration for changes in the contract, it must satisfy the requirements for change orders and turn in specific documentation and information to the owner. MMJ failed to do so. The court held that even though the contract owner had actual knowledge of the changed circumstances, this wasn't enough. It would have to do more to waive other than simply having actual notice of the changes.
So, the big question remains: if MMJ wasn't waiver, what does waiver look like? I believe that MMJ and another case called American Safety Cas. Ins. Co. v. City of Olympia, 133 Wn.App. 649, 137 P.3d 865 (2006) give us a hint:
In MMJ, the court analyzed an assertion by the plaintiff which said that because the county had actual knowledge of the changed circumstances, that it therefore couldn't deny compensation for mere failure to follow the details of the contract. The court disagreed:
"MMJ argued to the Court of Appeals, and maintains before this court, that when an owner has actual
notice of a contractor's protest or claim, that notice, in and of itself, excuses the contractor from complying with mandatory contractual protest and claim procedures. MMJ contends that the decision of Bignold v. King County, 65 Wn.2d 817, 822, 399 P.2d 611 (1965) establishes the 'actual notice' exception . . . [c]ontrary to MMJ's contention, the Court of Appeals in Bignold did not hold that the owner's actual notice of the changed condition in and of itself excused the contractor from complying with the contractual notice provisions. Rather it was the owner's knowledge of the changed conditions coupled with the subsequent direction to proceed with the extra work that evidenced its intent to waive enforcement of the written notice requirements under the contract." Id. at 388-89
From that analysis, the court has clued us into what may look like an unequivocal waiver: actual notice, coupled with directions to proceed. This resembles an estoppel argument in a lot of ways. A contract owner may not be protected if he/she knows about change orders, then directs the contractor to do the changed work. The court seemed to want to avoid the idea of using the contract as a payment shield after an owner draws the contractor into doing change orders.
This idea is echoed in the American Safety case. There, the court further clarified what unequivocal waiver may look like: "[w]e stress that the discussions between the City and American Safety took place after the work was completed, and thus the situation was not one where the City was directing American Safety to perform its obligations under the contract while the parties negotiated the contractual dispute. Had the City directed American Safety to focus on performing work rather than worrying about assembling documentation to comply with contractual provisions, then such situation could arguably be construed as implied waiver. . ." Id. at 772.
Unequivocal waiver of a contract provision would appear to be an instance where a benefited party knows of changed circumstances and directs the other party to more forward, OR, the party is aware of the changed circumstances, then waives the contract procedures by insisting that the work be done and that the contractual formalities be put off or ignored.
A recent opinion from the Court of Appeals address the issue of standing (“a party’s right to make a legal claim or seek judicial enforcement of a duty or right” according to Black’s). Division Two handed down its decision in Vance v. XXXL Development, Inc., involving a property owner’s nuisance claim against a developer. The developer had built a 25-foot high concrete block wall just two feet north of the homeowner’s property line. The homeowner sold her home prior to trial, and claimed that the sale price was $100,000 lower due to the nuisance. After the sale, the developer moved to dismiss the suit, claiming that the homeowner no longer had standing to sue.
The developer relied on RCW 7.48.020, which provides that a nuisance action “may be brought by any person whose property is … injuriously affected or whose personal enjoyment is lessened by the nuisance.” Because the statute describes the damages in the present tense, the developer argued that the homeowner lost standing when she sold the home (ie, at the time of trial, she wasn’t one who is injuriously affected or whose enjoyment is lessened). The trial court agreed with the developer.
The homeowner argued that the statute was not meant to be read so narrowly. For example, RCW 7.48.180 allows recovery of damages even after a nuisance has been abated. Further, the homeowner pointed out that seemingly arbitrary outcomes could result: a homeowner who sold the day before trial cannot recover, but one who sells the day after trial can. Also, the tortfeasor would have an incentive to drag out litigation and intensify the nuisance, hoping that the homeowner would be forced to move due to the noxious nuisance before trial.
Division Two agreed with the homeowner’s arguments. It also noted that damages from the nuisance would be more definite if the property had been sold, and emphasized the rule that “the spirit or purpose of an enactment should prevail over express but inept wording.”
Although I agree that statutes generally should be interpreted to mean what they say, Division Two probably made the right decision in this case. The homeowner here appears to have been damaged, and the purpose of the nuisance statutes is not frustrated by allowing her to recover for the damages incurred when she did own the home. It also seems to be a stretch to argue, based solely on the use of the present tense, that the legislature intended to exclude as plaintiffs those who have sold their property after inception of the nuisance. The unanswered question (and there are not enough facts in the opinion to speculate) is whether the developer’s retaining wall actually constitutes a nuisance for which the homeowner should recover. But at least she has the right to argue her claim.
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