The Washington Court of Appeals ruled in a published opinion earlier this month that 90% owner approval is necessary to amend the declarations of condominiums created after July 1, 1990 in a manner that restricts owners' ability to lease their units. The Court based its ruling on a provision in the Washington Condominium Act that requires 90% owner approval for declaration amendments that change "the uses to which any unit is restricted." Leasing was deemed to constitute a "use" of property. Interestingly, the Court declined to award the prevailing party its attorney fees "given the debatable issues of law presented in this case." This decision is now being appealed.
This new ruling regarding leasing restriction approval does not apply to condominiums created on or before July 1, 1990 unless they have amended their declarations to incorporate the amendment standards contained in the Washington Condominium Act. Furthermore, it does not invalidate declaration amendments restricting leasing rights that received less than 90% owner approval that were recorded more than one year ago by condominiums created after July 1, 1990 due to a statute of limitation contained in the Washington Condominium Act. However, this new ruling does make declaration amendments restricting leasing rights that received less than 90% owner approval that were recorded less than one year ago by condominiums created after July 1, 1990 vulnerable to legal challenge.
Community association law is constantly being amended and clarified by legislatures and courts. Attorneys who focus their practices on community associations are in the best position to keep abreast of those developments. Wise boards seek advice from such attorneys before proposing amendments to their associations' governing documents.
