The Benefits of Working with a Solo Attorney

Community association boards have the option to work with either a solo attorney or a firm composed of two or more attoneys. Many boards decide to work with a solo attorney due to three significant benefits that are unique to that situation. First, they know that the same experienced and knowledgable attorney will be providing them with legal guidance in all matters. A firm, on the other hand, can assign different attorneys with varying levels of experience and knowledge to them depending on the type of legal service that they request. Second, they know that the attorney-client relationship will have continuity in terms of rapport and history. A firm, on the other hand, can assign different attorneys with varying communication styles and limited information about past matters to them, and those assigned attorneys may not remain with that firm for very long. Third, they know that they will save money over time because a solo attorney has lower overhead expenses than a firm and will not need to periodically familiarize themselves with previous matters as new attorneys at a firm will be required to do. Given these benefits, your board should consider working with a solo attorney in the future.     

Cultivating Thankful Owners

Community association board membership can be thankless and stressful work. Owners often do not appreciate their board because its work is not perceived or poorly understood. The board is usually only contacted by owners who have a problem concerning their property or a complaint about how the association is being managed. The board must sometimes endure unfair criticism and even litigation relating to its decisions and to issues facing the association that are out of its control. This can make it difficult to attract and retain new board members with useful skills and good judgment.

The board can minimize these difficulties by regularly communicating with the owners regarding its contributions to the community. The board should describe the specific ways that each board member and the board as a whole has benefited the association. For example, board members who have volunteered their time to find the best contractors, to provide bookkeeping services, or to organize community events should be publicly thanked in an email to all of the owners and at the annual meeting. Owners who know the ways that the board has served them are less likely to express harsh attacks and more likely to give the board the benefit of the doubt. They might even feel gratitude towards the members of the board for their service.

Happy Thanksgiving to all of the community association board members who generously volunteer their time to make a positive impact in their communities.

Does Your Condominium or HOA Budget Provide for Legal Expenses?

Some condominium and homeowners associations' annual budgets do not include funds for legal expenses that may be necessary during the year.  However, most associations' boards have questions about the requirements of their governing documents and state law from time to time.  Those requirements are often difficult to understand without legal expertise.  If associations do not provide for legal expenses in their budgets, then they will likely rely on the opinions of persons who, despite good intentions and best efforts, will often lead them astray. Such persons include board members (even if they are attorneys) and property managers. Those associations' boards are also likely to rely on free information (including the information on this blog) that is not applicable to their situations or to misinterpret that information. Since failure to comply with governing documents and state law can have serious consequences for associations, board members, and owners, all associations' boards should at least give serious thought to establishing a legal line item in their annual budgets.

As previously discussed on this blog, all condominium and homeowners associations in Washington state are now required by law to provide each proposed budget to the owners and schedule a meeting to consider ratification of that budget.  A budget is ratified unless owners to which a majority of the votes in the association are allocated reject it. This ratification process must be followed even if an association's governing documents contain a different procedure.

Residential Use Covenant Held to Take Precedence Over Zoning Authorization

The Washington Court of Appeals issued an unpublished opinion concerning the use of real property earlier this month.  The Court ruled that a subdivision's restrictive covenant mandating residential use of property took precedence over a county's authorization for an owner to use its property for nonresidential purposes.  The Court pointed out that "enforcement of public zoning laws and private restrictive covenants are distinct processes" and concluded that "[t]he fact that Jabco obtained approval for nonresidential use of its property through the county's zoming procedures does not mean that it was entitled to disregard restrictions contemplated by private covenant."

Covenant enforcement can lead to costly litigation and significant liability. If your Washington community association becomes involved in a covenant enforcement dispute, then it should consider contacting an attorney with experience in that practice area.

HOA Unpaid Assessments Are Subject to a Six-Year Statute of Limitations

The Washington Court of Appeals recently decided that the applicable statute of limitations for an action to enforce a homeowners association's lien for unpaid assessments is six years. It noted that a Washington statute establishes a six-year statute of limitations for actions upon a contract in writing or liability arising out of a written agreement and ruled that the association's declaration of covenants is a written agreement. The Court further held that each unpaid annual assessment constituted a separate claim, which limited the association to the collection of unpaid assessments imposed over the preceding six years. During the course of its opinion, it pointed out that the WUCIOA establishes a six-year statute of limitations for actions arising out of that statute and that the Washington Condominium Act establishes a three-year statute of limitations for actions arising out of that statute. 

Washington common interest associations should consider obtaining legal counsel before beginning collection actions that involve lengthy delinquencies. This will help avoid potential liability if the matter is litigated.

Washington State Common Interest Communities Are Subject to New Laws

The law governing Washington state common interest communities has changed a great deal over the last several months. The Washington Legislature and Governor recently approved three new laws affecting such communities. The Governor rescinded his virus-related proclamation concerning those communities earlier this month. Eviction restrictions have been extended in some places and allowed to expire in others. 

The first new law affecting common interest communities pertains to notices, meetings, and voting.  It permits those communities to notify owners of meetings and other matters by electronic transmission with their prior consent. It allows those communities to meet remotely if they adopt a resolution or approve a governing document amendment providing for such meetings.  The new law also permits owners in those communities to vote by proxy, mail, and electronic transmission. 

The second new law concerns foreclosure actions. It requires those communities to mail a new notice to delinquent owners before filing foreclosure actions.  Those communities are also prohibited from commencing foreclosure actions against delinquent owners until they owe at least nine months of assessments (six months of assessments starting January 1, 2024).

The third new law is a restatement of the Washington Nonprofit Corporations Act.  With minor exceptions, this law does not take effect until January 1, 2022.  Communities organized as nonprofit corporations will soon be required to comply with different procedures with regard to matters such as record retention and meeting minutes.

Governor Inslee's virus-related proclamation expired on July 24.  Common interest communities may now charge late fees and interest when an owner's account is delinquent. The proclamation's provisions relating to notices, meetings, and voting were largely incorporated and expanded in the first new law discussed above.

The federal eviction moratorium is currently scheduled to expire on July 31.  The Seattle eviction moratorium is currently scheduled to expire on September 30, but it may be extended. Other counties and cities have different eviction standards. Communities should seek legal advice before starting eviction actions or terminating utilities.

This is only a general overview of these changes. My office is available to help your community fully understand and comply with its current legal obligations.

Governor's COVID Proclamation Concerning Community Associations Expires on July 24

Governor Inslee's COVID Proclamation pertaining to Washington state community associations expires at 11:59 p.m. on July 24.  Community associations will regain the ability to charge late fees and interest if an owner's account is delinquent at that time. The Proclamation's provisions permitting community associations to notify owners, meet, and vote by electronic methods will also expire on that date, but a new state law permitting associations to act in that manner will take effect on July 25.      

Washington Court of Appeals Affirms Judgment for Misuse of Easement

Several property owners had a dispute concerning the validity and enforcement of three easements.  Two of the property owners misused the easements by initiating loud confrontations with neighbors about them, by intimidating neighbors from accessing their property within the easement areas, by destroying objects of private property, by forcing neighbors to incur debt due to unpaid public utilities, and by bringing noise and traffic onto neighbors' private property.  A judge in the ensuing litigation ruled that those two property owners unlawfully deprived their neighbors of "peace, privacy, security, and the quiet use and enjoyment of their homes" and thereby caused them to suffer economic damages and emotional distress. This decision was affirmed on appeal.

Disputes with owners regarding property use and access can escalate quickly and lead to lawsuits. Timely guidance from an experienced attorney can help ensure that an association achieves its objectives and avoids liability when it becomes involved in such disputes.

My Next Free Community Association Presentation Will Take Place on June 25

My next free Zoom presentation concerning current community association issues for the Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m. on Friday, June 25. This presentation will include a discussion of two new laws applicable to Washington community associations.  If you want to attend this presentation, then you should contact Teresa Glidden at the Washington Secretary of State's office at teresa.glidden@sos.wa.gov. 

Washington Courts Reject Owners' Claim to Own Portion of HOA's Common Areas

A deck adjacent to a townhome in Kirkland, Washington was rebuilt by a homeowners association in a manner that encroached more than fifty feet into its common areas.  The association later discovered that the deck was significantly larger than allowed and gave the owners of the townhome two options: 1) take over maintenance of the deck or 2) allow the association to remove and rebuild the deck to the appropriate specifications. The owners rejected both options and sued the association, alleging among other claims that they had acquired ownership of the portion of the common areas affected by the deck encroachment through adverse possession. The trial court dismissed the owners' lawsuit, and the Court of Appeals affirmed that decision.  

The Court of Appeals initially pointed out in its unpublished opinion that the Washington Growth Management Act bars adverse possession claims against homeowners associations' common areas.  It went on to note that the association's decision to take no action against decks that encroached less than fifty feet into its common areas was a reasonable exercise of its enforcement power that sought to balance the harm associated with violations with the costs associated with enforcement and the risks associated with litigation.  The Court concluded by ruling that under the association's declaration the owners must pay the association's legal fees because their lawsuit resulted in the enforcement of a covenant.

Washington Court of Appeals Affirms HOA's Removal of Gate and Boulders

A homeowners association removed boulders and a gate that two owners had placed in a road easement and assessed those owners for the cost of that removal.  When the owners failed to pay that assessment and monthly dues, the association filed a lien foreclosure action. The trial court permitted foreclosure of the association's lien, and the Court of Appeals upheld that decision. The Court held that the covenants governing the property express the "intent to grant the homeowners association plenary power over use of the roads and to preclude any owner from obstructing a road" and grant the association the exclusive authority to erect gates.

The owners argued that the association's failure to object to the gate and boulders for twelve years supported the conclusion that the association authorized their installation. The Court of Appeals rejected that argument, noting that the covenants contained an anti-waiver clause that allows the association "to enforce any of its provisions even if it did not enforce the provision initially."

Who Selects and Communicates With the Association's or Community's Attorney?

Each board of a Washington state condominium association, homeowners association, or common interest community has the right to directly select and communicate with the association's or community's attorney. Each such board should consider exercising (rather than delegating) that right if it is not currently doing so. The attorney-client relationship is between the attorney and the association or community, and it is best promoted through direct communication between them. Such communication should be considered whenever one or more potential legal issues have been identified by a board member, a property manager, or an owner. 

Washington Court of Appeals Affirms HOA's Covenant Amendment

The Washington Court of Appeals recently affirmed a trial court's decision that a homeowners association had the authority to adopt an amendment to the covenants governing the property without a unanimous vote of the owners. The Court noted that an express reservation of power authorizing less than 100 percent of property owners within a subdivision to adopt new restrictions (as opposed to changing existing covenants) respecting the use of privately owned property is valid if such power is exercised in a reasonable manner consistent with the general plan of the development. After reviewing the association's covenants, the Court ruled that the plaintiffs failed to show that any portion of the amendment at issue was inconsistent with the general development plan, imposed unreasonable disparate impacts on their property, or were otherwise invalid.      

COVID Proclamation Affecting Community Associations Extended Indefinitely

The Governor of Washington state issued a Proclamation yesterday that permits owners and directors in condominium and homeowners associations to continue to vote by mail, electronic transmission, and proxy and to attend meetings by conference telephone and similar electronic services until the termination of the COVID-19 state of emergency or the rescinding of the Proclamation, whichever occurs first.  This Proclamation also extends a previous prohibition on condominium and homeowners associations charging late fees for delinquent assessments until the termination of the COVID-19 state of emergency or the rescinding of the Proclamation, whichever occurs first.