March 4, 2015 Interviews Discuss Actions Without Meetings and Alcohol at Meetings

I was recently interviewed by regarding two interesting questions that community association boards sometimes encounter.  First, can boards act without a meeting?  Second, can boards allow alcohol at meetings?  To see how I and other industry professionals responded to those questions, please follow these links: 

Can Boards Act Without a Meeting?

Can Boards Allow Alcohol at Meetings?  

February 6, 2015

Recent Court Decision Interprets Tree Covenants

The Washington Court of Appeals recently issued an unpublished decision that interpreted covenants governing trees in a residential community.  The Court ruled that the covenants prohibit removal of natural tree growth consistent with the plan of development and impose a six foot height limitation on trees not protected under the plan of development (including natural growth).  The Court noted that the tree height restriction must be enforced even if that necessitates the removal of the trees at issue. 

The Court admitted during the course of its decision that the tree covenants before it were "not a model of clarity." It can also sometimes be difficult for association boards to decide what certain covenants mean.  Consulting with an experienced attorney can help ensure that such covenants are understood and enforced in the correct manner.

December 30, 2014

Washington Court Affirms Application of Statute of Limitation in Condo Act

In a published decision issued last month, the Washington Court of Appeals affirmed a trial court's application of a one-year statute of limitation contained in the Washington Condominium Act.  The section of the Act governing declaration amendments states that a challenge to an amendment "adopted by the association pursuant to this section" may not be brought more than one year after that amendment is recorded.  The Court held that the statute of limitation did not apply to the declaration amendment at issue because it was not adopted with the proper amount of owner approval and was therefore void from its inception.  As a result, an owner's successful challenge to the declaration amendment in the lower court was upheld. This decision is only binding authority in eastern Washington.

Condominium declaration amendments are subject to many legal requirements.  If those requirements are not followed, then amendments can be invalidated.  Condominium association boards should consult with experienced attorneys before they seek to amend their declarations.   

November 30, 2014

Washington Court Enforces HOA's Approval Requirement for Assessment Increases

The Washington Court of Appeals issued a published opinion earlier this year that enforced a sixty percent approval requirement for assessment increases contained in a homeowners association's bylaws.  The Court held that the budget ratification process described in the Washington Homeowners' Associations Act (RCW 64.38) is distinct from the assessment imposition process and does not override this type of approval requirement for assessment increases.  In the case of this association, this means that one standard applies when ratifying budgets (owners holding more than forty-nine percent of the voting power must either vote for it or not vote) and another standard applies when assessment increases are proposed (at least sixty percent of the owners present at a meeting must vote for it). 

October 15, 2014

Washington Supreme Court Limits HOAs' Ability to Create New Restrictive Covenants

The Washington Supreme Court issued a published opinion this past April that significantly limited the ability of homeowners associations to create new restrictive covenants that have no relation to existing covenants.  The case involved a dispute between a homeowners association and a group of owners over the validity of a majority-approved covenant amendment prohibiting short-term vacation rentals.  The owners contended in their lawsuit that the covenant amendment required unanimous owner consent because the existing covenants did not contain any durational limitations on leasing and only gave the association the power to change existing covenants by majority vote (as opposed to the power to create new covenants that have no relation to existing covenants).    
The Court agreed with the owners and invalidated the covenant amendment.  It held that if a homeowners association's existing covenants only authorize it to change existing covenants by majority vote, then that association may only adopt a covenant amendment imposing new restrictions on the use of the property by majority vote if that amendment is "consistent with the general plan of development and related to an existing covenant."  It is notable that two dissenting opinions argued at length that the correct legal standard in this situation is whether the amendment was adopted "in a reasonable manner [and is] consistent with the general plan of development."

As a result of this decision, some homeowners associations may seek to amend their covenants to permit the creation of new restrictive covenants by majority vote.  If your association wants to amend its covenants in any manner, then it should strongly consider consulting an attorney who is familiar with the laws that apply to such amendments.