Messy yards, foreclosed homes: What's a neighbor to do?

Q: Two homes in our neighborhood are in foreclosure and the owners have stopped maintaining their yards. This violates our homeowners association (HOA) covenants. Can our association require the banks that are foreclosing to maintain these yards until the homes are sold?

A: "Typically covenants of this kind are only enforceable against the owner of the property," says Seattle attorney Samuel Jacobs of Mosler Schermer Walstrom Jacobs & Sieler in Seattle. "Therefore based on the typical covenants, the bank would have no obligation to maintain the yard unless and until it owns the property."

Occasionally covenants give the association some authority to do yard maintenance and charge the cost against the property. But there are two problems with this, notes Jacobs. First is the inherent risk of doing work on private property without the owner's consent. Second, even if the bill could be passed on (in the form of a lien against the property), there's a good chance it would be wiped out in a foreclosure. So until the foreclosures are completed, "I don't think there's a lot you can do," Jacobs says.

Q: We hired a contractor to reconstruct some stairs. The contractor's foreman hired a subcontractor to do the work. But it's not up to code so the building inspector won't OK it.

The sub says he did the job based on the foreman's instructions and he won't do any more work until we pay him. There's no written contract and the foreman quit. The contractor told me to work it out with the subcontractor or get someone else to complete the work. Must I pay the subcontractor for the work done? I'm concerned I'll pay him, then have to pay again to get what I wanted in the first place.

A: You're not responsible for paying the subcontractor because your agreement wasn't with him. It was with the contractor. So that's the person you need to deal with says attorney Jeanette Bowers Weaver, of Bowers Foreman, in Kirkland. Here's her advice.

Ask two or three other contractors for written bids to redo the stairs to code. Then write the contractor a letter. Say "you're in breach of our agreement to reconstruct the stairs. If you don't contact me within two weeks to correct the work, I'll hire one of these contractors and deduct what I have to pay them from what I owe you."

Additionally:

• Oral contracts are enforceable.

• The contractor was responsible for the foreman's performance so the foreman's departure is immaterial.

• The subcontractor has no legal right to demand payment or sue you. He might threaten to place a lien on your home to collect. A court likely would rule his lien invalid because his work wasn't up to code.

• Don't pay the sub; doing so would establish a business relationship with him that could allow the contractor to skirt his obligation to you.

Home Forum answers readers' real-estate questions. Send questions to erhodes@seattletimes.com or or call 206-464-8510 to leave a question. Sorry, no personal replies. More columns at www.seattletimes.com/columnists.