tag:blogger.com,1999:blog-84769738905405064512024-03-08T02:06:28.613-08:00The Seattle Condo Attorney BlogPractical Insights for Washington Condo and HOA BoardsUnknownnoreply@blogger.comBlogger273125tag:blogger.com,1999:blog-8476973890540506451.post-83522039333630969902024-02-29T18:00:00.000-08:002024-02-29T18:00:54.025-08:00Court of Appeals Resolves Dispute Between Competing Community Association Boards<div style="text-align: justify;"><span style="font-family: times; font-size: large;">There was
recently litigation to determine which of two competing boards of directors of
a community association had the right to access the association’s bank accounts.
One of the litigants originally served on the association’s board as an
appointed director and president. He and the other eight appointed directors
failed to hold a timely election as required by the association’s bylaws. A
small group of community members formed an election committee and collected
signatures from 70 percent of the association’s members demanding that the
board hold an election. The appointed board refused to hold an election, so the
election committee organized and held a special election. The association’s members
ultimately removed seven of the eight appointed directors and elected a new
board. The original president contested the election. The trial court granted summary
judgment in favor of the association. The original president then appealed that
summary judgment, but it was upheld on appeal and he was ordered to pay the
association’s appellate attorney fees.</span></div><p></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-48334389460844326322024-01-16T16:36:00.000-08:002024-01-16T16:36:39.566-08:00WA Court of Appeals Rules in Favor of Association's Covenant Enforcement Action <div style="text-align: justify;"><span style="font-family: times; font-size: large;">The Washington Court of Appeals recently
affirmed a trial court’s decision that a community association properly exercised
its authority to enforce protective covenants requiring buildings to present a
finished external appearance within one year and requiring members to keep
their properties free of clutter and other unsightly structures and conditions.
The Court noted that the property owner failed to install permanent roofing on his
house and barn for over one year without good cause and kept piles of
construction materials in places that were visible from the road. The Court concluded
that the owner’s attempts to invalidate the enforcement action lacked merit and
that the association had the right to remedy the covenant violations at issue.
The owner was also required to pay the association’s attorney fees.</span></div><p class="MsoNormal" style="line-height: normal; margin-bottom: 0in; mso-outline-level: 1; mso-pagination: none; text-align: justify;"><span style="font-family: times; font-size: large;">Enforcing governing documents sometimes
requires litigation, and the owners in question usually attack their community
association’s enforcement procedures both in general and as applied to them. Association boards that work with a qualified attorney can ensure that their enforcement procedures and actions are likely to survive such scrutiny. </span><span style="font-family: Times New Roman, serif; font-size: 12pt;"><o:p></o:p></span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-5368097342114222162023-12-29T16:13:00.000-08:002023-12-29T17:02:12.226-08:00Looking Forward to 2024!<div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span>As a new year begins, I look forward to tackling the questions, challenges, and innovations that it will bring</span>. I am humbled that so many condominium and homeowners associations have placed their trust in me. I will continue to represent their interests and guide their boards to the best of my ability. </span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-90914198486537460032023-12-22T15:06:00.000-08:002023-12-22T15:08:01.310-08:00Court of Appeals Decides that Property Owner Complied with Tree-related Duties<div style="text-align: justify;"><span style="font-family: times; font-size: large;">In early 2021, a windstorm with gusts reaching upwards of 75 miles per hour hit Spokane, causing widespread destruction. During the storm, a ponderosa pine tree located on a residential property snapped. The top of the tree landed on and damaged two vehicles on a neighboring property. A lawsuit ensued. The Washington Court of Appeals decided in a recent unpublished opinion that the owner of the property on which the tree was located was not negligent with regard to it. The Court summarized the governing law as follows: </span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;">"A landowner is not under a duty to guarantee their trees will not harm persons or property on adjacent land when the trees are part of the natural landscape. Rather, a landowner is obliged to take corrective action toward their trees when on actual or constructive notice of defects ... A landowner is on notice when defects in their trees are 'readily observable.'"</span></p><p style="text-align: justify;"><span style="font-family: times; font-size: large;">The Court concluded that the record failed to raise a genuine issue of material fact as to whether the owner of the property on which the tree was located had actual or constructive notice of a defect in her trees. Without such notice, she had no duty to take corrective action.</span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-74872111555657278702023-11-28T17:28:00.000-08:002023-12-14T17:02:51.463-08:00Court Upholds Association's Decision to Refrain from Enforcing Covenant<div style="text-align: justify;"><span style="font-family: times; font-size: large;">I</span><span style="font-family: times; font-size: large;">n a recent unpublished Washington Court of Appeals opinion, a lot owner had sued his homeowners association and contended that it had a duty to take certain actions with regard to parking enforcement. The appellate court disagreed with that contention on several grounds, one of them being that the declaration of covenants states that the Association has the power to enforce it but is not required to do so. The court observed as follows: </span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;"><span style="text-align: justify;">"When a homeowners’
association makes a discretionary decision in a procedurally valid manner, we
must not substitute our judgment for that of the homeowners’ association unless
there is fraud, dishonesty, or incompetence ....</span><span style="text-align: justify;"> The supreme court noted that this rule was necessary to insulate homeowner
associations from being subjected to lawsuits anytime a homeowner disagreed
with a discretionary choice made by the Board."</span></span></p><p style="text-align: justify;"><span style="font-family: times; font-size: large;">If your community association board has questions about the nature and scope of its covenant enforcement powers and duties, then it should consider retaining a qualified attorney to provide clarity.</span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-53453509715011141522023-10-27T11:42:00.000-07:002023-12-22T15:48:43.953-08:00My Next Presentation for the Washington Secretary of State is on November 8! <div style="text-align: justify;"><span style="background-color: white; font-family: times;"><span style="font-size: large;">My next
free virtual presentation concerning current community association legal issues for the
Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m.
on Wednesday, November 8. This presentation will include information regarding new
state laws applicable to such associations. If you want to attend, then you should contact Teresa Glidden at the Secretary of State's office at teresa.glidden@sos.wa.gov.</span></span></div><p></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-48798194276650010922023-09-13T11:05:00.001-07:002023-09-13T11:05:47.061-07:00Washington State Community Association Budget Season Is Here!<div style="text-align: justify;"><span style="font-family: times; font-size: large;">Washington State condominium and homeowners associations' annual and special budgets are legally required to contain certain information and to be ratified by their owners. Those associations must first provide each proposed budget to their owners and schedule a meeting to consider ratification of that budget. The proposed budget must include:</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><span style="font-family: times; font-size: large;"><div style="text-align: justify;">(a) The projected income to the association by category;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(b) The projected common expenses and those specially allocated expenses that are subject to being budgeted, both by category;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) The amount of the assessments per unit and the date the assessments are due;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(d) The current amount of regular assessments budgeted for contribution to the reserve account;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(e) A statement of whether the association has a reserve study that meets the requirements of RCW 64.90.550 and, if so, the extent to which the budget meets or deviates from the recommendations of that reserve study; and</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(f) The current deficiency or surplus in reserve funding expressed on a per unit basis.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Other state laws (RCW 64.34 and 64.38) require the proposed budgets of the associations to which they apply to contain additional information as well. Each proposed budget is ratified unless a group of owners of units or lots to which a majority of the total voting power in the association is allocated rejects it at that meeting.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">If your board has questions or concerns about the approval and ratification of the association’s budgets, then my office is here to help!</div></span>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-76957551033061514442023-08-29T15:55:00.009-07:002023-08-29T15:56:58.477-07:00Washington Court of Appeals Upholds Condo Declaration's Exculpatory Clause<div style="text-align: justify;"><span style="font-family: times; font-size: large;">The Washington Court of Appeals recently ruled in an unpublished opinion that a condominium's declaration exculpated the condominium association from any liability arising out of an owner's claim that the association neglected to maintain a common element. It based that ruling on a common limitation of liability clause in the condominium's declaration that broadly exculpated the association from such claims except to the extent covered by the association's insurance. The Court summarized its reasoning as follows:</span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;">"As in <u>Scott</u>, the exculpation from liability from water from outside or from any parts of the buildings logically includes liability based on the Association's negligence. That the exception to the exculpation exists when the Association has insurance to cover the liability implies the clause was intended to exculpate the Association from liability for damages for its own negligence."</span></p><p style="text-align: justify;"><span style="font-family: times; font-size: large;">If your condominium or homeowners association board has questions or concerns about the association's liability for an owner's claim against it, then the board should consider contacting my office. </span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-73167876111424198202023-07-03T19:23:00.002-07:002023-07-05T10:30:01.812-07:00Two New Washington State Laws Are Designed to Increase Housing Density<div style="text-align: justify;"><span style="font-size: large;"><span style="background-color: white; color: #231f20; font-family: times;">The Washington State Legislature recently approved two new laws designed to increase housing density. Both laws will go into effect on July 23, 2023. The first law requires cities with over 25,000 people to allow at least duplexes in all areas and cities with more than 75,000 people to allow at least fourplexes in all areas. Community associations whose governing documents contain more restrictive housing provisions as of that date are e</span><span style="background-color: white; color: #231f20; font-family: times;">xempt from those requirements, but they are</span><span style="color: #231f20; font-family: times;"> prohibited from amending their governing documents to prohibit duplexes and other kinds of middle housing after that date. The</span><span style="color: #231f20; font-family: times;"> second law states in part that the governing documents of community associations created after that date that are within an urban growth area may not impose any restriction or prohibition on the construction, development, or use on a lot of an accessory dwelling unit that the city or county where that area is located would be prohibited from imposing under that law. Those prohibited impositions are described in the new law as follows: </span></span></div><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(a) The city or county may not assess impact fees on the construction of accessory dwelling units that are greater than 50 percent of the impact fees that would be imposed on the principal unit;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(b) The city or county may not require the owner of a lot on which there is an accessory dwelling unit to reside in or occupy the accessory dwelling unit or another housing unit on the same lot;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(c) The city or county must allow at least two accessory dwelling units on all lots that are located in all zoning districts within an urban growth area that allow for single-family homes in the following configurations:</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(i) One attached accessory dwelling unit and one detached accessory dwelling unit;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(ii) Two attached accessory dwelling units; or</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(iii) Two detached accessory dwelling units, which may be comprised of either one or two detached structures;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(d) The city or county must permit accessory dwelling units in structures detached from the principal unit;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(e) The city or county must allow an accessory dwelling unit on any lot that meets the minimum lot size required for the principal unit;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(f) The city or county may not establish a maximum gross floor area requirement for accessory dwelling units that is less than 1,000 square feet;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(g) The city or county may not establish roof height limits on an accessory dwelling unit of less than 24 feet, unless the height limitation that applies to the principal unit is less than 24 feet, in which case a city or county may not impose roof height limitation on accessory dwelling units that is less than the height limitation that applies to the principal unit;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(h) A city or county may not impose setback requirements, yard coverage limits, tree retention mandates, restrictions on entry door locations, aesthetic requirements, or requirements for design review for accessory dwelling units that are more restrictive than those for principal units;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(i) A city or county must allow detached accessory dwelling units to be sited at a lot line if the lot line abuts a public alley, unless the city or county routinely plows snow on the public alley;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(j) A city or county must allow accessory dwelling units to be converted from existing structures, including but not limited to detached garages, even if they violate current code requirements for setbacks or lot coverage;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(k) A city or county may not prohibit the sale or other conveyance of a condominium unit independently of a principal unit solely on the grounds that the condominium unit was originally built as an accessory dwelling unit; and</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(l) A city or county may not require public street improvements as a condition of permitting accessory dwelling units.</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(2)(a) A city or county subject to the requirements of this section may not:</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(i) Require off-street parking as a condition of permitting development of accessory dwelling units within one-half mile walking distance of a major transit stop;</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(ii) Require more than one off-street parking space per unit as a condition of permitting development of accessory dwelling units on lots smaller than 6,000 square feet before any zero lot line subdivisions or lot splits; and</span></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(iii) Require more than two off-street parking spaces per unit as a condition of permitting development of accessory dwelling units on lots greater than 6,000 square feet before any zero lot line subdivisions or lot splits.</span></p><p></p><p style="text-align: justify;"><span style="color: #231f20; font-family: times; font-size: large;">(3) When regulating accessory dwelling units, cities and counties may impose a limit of two accessory dwelling units, in addition to the principal unit, on a residential lot of 2,000 square feet or less.</span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-63274086341131406932023-05-31T11:46:00.004-07:002023-05-31T11:50:21.239-07:00New Laws Apply to Washington State Community Associations<div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span>The Washington State Legislature recently approved several new laws that affect existing community associations. </span>The first new law prohibits community associations
from prohibiting, unreasonably restricting, or limiting the use of properties for
licensed family home child care or as licensed child daycare centers. An association
may require properties being used in that manner to: 1) provide direct customer
access from the outside of the buildings or through publicly accessible common
areas, 2) be licensed by the state, 3) indemnify the association against all
claims related to that use except for claims that arise in common elements that
the association is solely responsible for maintaining under the governing
documents, 4) obtain daycare insurance or provide self-insurance, and 5) provide
the association with signed waivers from the guardians of each child
being cared for that release them from legal claims related to that use. An
association may impose reasonable rules pertaining to family home child care
and licensed child daycare centers, but those rules must apply equally to all
other association members. This law took effect on May 1, 2023.</span></div><p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="font-family: times; font-size: large;"><span style="color: black;">The second new law permits community
associations to </span><span style="color: black;">require owners who lease their properties
to use a tenant screening service or obtain background information, including
criminal history, pertaining to their prospective tenants at the owners’ sole
cost and expense before executing leases and to require proof that this has
been done. However, associations may not require that tenant screening reports
or any background information pertaining to tenants be furnished to them.</span><span style="color: black;"> This law takes effect on July 23, 2023.</span> </span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="font-family: times; font-size: large;"><span style="color: black;">The third new law requires community
associations to keep and maintain the following records:</span><span style="color: black;"> 1) the current budget, detailed records of receipts
and expenditures affecting the operation and administration of the association,
and other appropriate accounting records within the last seven years, 2) minutes
of all meetings of its owners and board other than executive sessions, a record
of all actions taken by its owners or board without a meeting, and a record of
all actions taken by a committee in place of the board on behalf of the
association, 3) the names of current owners, addresses used by the association
to communicate with them, and the number of votes allocated to each property,
4) its organizational and governing documents, including all amendments, 5) all
financial statements and tax returns of the association for the past seven years,
6) a list of the names and addresses of its current board members and officers,
7) its most recent annual report delivered to the Secretary of State, if any, 8)
copies of contracts to which it is or was a party within the last seven years,
9) materials relied upon by the board or any committee to approve or deny any
requests for design or architectural approval for a period of seven years after
the decision is made, 10) materials relied upon by the board or any committee
concerning a decision to enforce the governing documents for a period of seven
years after the decision is made, 11) copies of insurance policies under which
the association is a named insured, 12) any current warranties provided to the
association, 13) copies of all notices provided to the owners or the
association in accordance with state law or the governing documents, and 14) ballots,
proxies, absentee ballots, and other records related to voting by owners for
one year after the election, action, or vote to which they relate.</span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="color: black;"><span style="font-family: times; font-size: large;">Community associations’ records must generally
be made available for examination and copying by all owners, holders of
mortgages on the properties, and their respective authorized agents during
reasonable business hours or at a mutually convenient time and location and at
the offices of the association or its managing agent. However, records retained
by associations must have the following information redacted or otherwise
removed prior to disclosure: 1) personnel and medical records relating to
specific individuals, 2) contracts, leases, and other commercial transactions
to purchase or provide goods or services currently being negotiated, 3) existing
or potential litigation or mediation, arbitration, or administrative
proceedings, 4) existing or potential matters involving federal, state, or
local administrative or other formal proceedings before a governmental tribunal
for enforcement of the governing documents, 5) legal advice or communications
that are otherwise protected by the attorney-client privilege or the attorney
work product doctrine, including communications with the managing agent or
other agent of the association, 6) information the disclosure of which would
violate a court order or law, 7) records of an executive session of the board,
8) individual property files other than those of the requesting owner, 9) unlisted
telephone number or electronic address of any owner or resident, 10) security
access information provided to the association for emergency purposes, and 11) agreements
that for good cause prohibit disclosure to the owners. Prior to disclosure of
the list of owners, an association must also
redact or otherwise remove the address of any owner or resident who is known to
the association to be a participant in an address confidentiality program.</span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="font-family: times; font-size: large;"><span style="color: black;">Community associations may charge a
reasonable fee for producing and providing copies of any records and for
supervising an owner's inspection of records, but an owner is entitled to
receive a free annual electronic or paper copy of the list of owners from the
association. The right to copy records includes the right to receive copies by
photocopying or other means, including through an electronic transmission, if
available, upon request by an owner. Associations are not obligated to compile
or synthesize information for an owner who requests to review or receive
records. </span><span style="color: black;">This law takes effect on July 23,
2023.</span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="font-family: times; font-size: large;"><span style="color: black;">The fourth new law </span><span style="color: black;">imposes additional requirements
on</span><span style="color: black;"> community associations</span><span style="color: black;"> related to the
collection of past due assessments. Associations must mail</span><span style="color: black;"> a specified pre-foreclosure notice to delinquent owners
along with the first notice of delinquency for past due assessments and the
same notice again before beginning a foreclosure action against those owners’
properties. The second notice may not be mailed sooner than sixty days after the
first notice is mailed</span><span style="color: black;">.</span><span style="color: black;"> </span><span style="color: black;">A</span><span style="color: black;">ssociations may</span><span style="color: black;"> </span><span style="color: black;">not begin foreclosure actions against delinquent owners</span><span style="color: black;">’ properties</span><span style="color: black;"> unless they owe a sum greater than: </span><span style="color: black;">1)
t</span><span style="color: black;">hree months or more of assessments, not
including fines, late charges, interest, attorneys' fees, or costs incurred by
the association in connection with the collection of </span><span style="color: black;">the</span><span style="color: black;"> delinquent owner's account,</span><span style="color: black;">
or 2) </span><span style="color: black;">$2,000 of assessments, not including
fines, late charges, interest, attorneys' fees, or costs incurred by the association
in connection with the collection of a delinquent owner's account</span><span style="color: black;">.
</span><span style="color: black;">This law takes effect on July 23,
2023.</span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: 0in; text-align: justify;"><span style="color: black;"><span style="font-family: times; font-size: large;">The laws that apply to community
associations grow more numerous and complex every year. It has unfortunately become
virtually impossible for associations to comply with all of those laws without
legal guidance. Community association boards should strongly consider
consulting with an attorney who specializes in this area on a periodic basis. </span></span><span style="font-family: "Times New Roman",serif; font-size: 12pt;"><o:p></o:p></span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-78446166501733591832023-04-21T12:12:00.001-07:002023-04-21T12:12:44.288-07:00Defendant in Covenant Violation Lawsuit Ruled to be Entitled to Attorney Fee Award<div style="text-align: justify;"><span style="font-family: times; font-size: large;">A recently issued court opinion in Washington state concerned a line of cypress trees near the boundary between two properties that allegedly blocked a view of sunsets and downtown Portland in violation of restrictive covenants on those properties. A significant issue was whether the plaintiffs were responsible to pay the attorney fees incurred by the successful defendants. The court ruled that both owners who violate covenants and owners who unsuccessfully pursue claims that other owners are violating covenants are liable to pay the other party's attorney fees. The court pointed out that "interpreting the CCRs to provide recovery for homeowner-versus-homeowner litigation encourages compliance and discourages spurious litigation among neighbors, which is consistent with the law's directive to interpret HOA covenants in a manner that supports all the owners' collective interests." </span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-54348972165155557242023-03-30T12:26:00.000-07:002023-03-30T12:26:23.816-07:00Many Community Association Directors Are Not Permitted to Vote by Proxy<div style="text-align: justify;"><span style="font-family: times; font-size: large;">Directors of condominium and homeowners associations may sometimes want to vote by proxy rather than attend a board meeting. However, Washington state law does not permit many of them to do so. First, the Washington Uniform Common Interest Ownership Act ("WUCIOA") prohibits directors of communities that were created on or after July 1, 2018 or that have amended their governing documents to apply that law's provisions from voting by proxy. Second, the Washington Nonprofit Corporation Act as restated in 2021 prohibits directors of nonprofit corporations (as many condominium and homeowners associations are organized) from using a proxy to count toward quorum or to vote. As a result, only directors of communities that are both not governed by WUCIOA and not nonprofit corporations may vote by proxy.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">It is often difficult for boards to understand what laws apply to their communities. If your board is unclear about that issue or wants to confirm its legal status, then it should consider contacting my office. </span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-5228909744169704622023-02-24T11:46:00.001-08:002023-02-24T11:46:35.140-08:00Conducting a Vote Without a Meeting<div style="text-align: justify;"><span style="background-color: white; text-indent: 0.5in;"><span style="font-family: times; font-size: large;">Community association boards often ask me whether they may conduct a vote without a meeting. Washington state law does permit this, but only under the conditions stated below. If your board has questions or concerns about how to interpret and apply this law, then it should consider contacting my office to obtain guidance. The association's governing documents may need to be amended to conduct such a vote in the manner that is desired. </span></span></div><p style="text-align: justify;"><span style="background-color: white; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">Unless prohibited or limited by the declaration or organizational documents, an association may conduct a vote without a meeting. In that event, the following requirements apply:</span></i></span></p><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(a) The association must notify the unit owners that the vote will be taken by ballot.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(b) The notice must state:</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(i) The time and date by which a ballot must be delivered to the association to be counted, which may not be fewer than fourteen days after the date of the notice, and which deadline may be extended in accordance with (g) of this subsection;</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(ii) The percent of votes necessary to meet the quorum requirements;</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(iii) The percent of votes necessary to approve each matter other than election of board members; and</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(iv) The time, date, and manner by which unit owners wishing to deliver information to all unit owners regarding the subject of the vote may do so.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(c) The association must deliver a ballot to every unit owner with the notice.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(d) The ballot must set forth each proposed action and provide an opportunity to vote for or against the action.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(e) A ballot cast pursuant to this section may be revoked only by actual notice to the association of revocation. The death or disability of a unit owner does not revoke a ballot unless the association has actual notice of the death or disability prior to the date set forth in (b)(i) of this subsection.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(f) Approval by ballot pursuant to this subsection is valid only if the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(g) If the association does not receive a sufficient number of votes to constitute a quorum or to approve the proposal by the date and time established for return of ballots, the board of directors may extend the deadline for a reasonable period not to exceed eleven months upon further notice to all members in accordance with (b) of this subsection. In that event, all votes previously cast on the proposal must be counted unless subsequently revoked as provided in this section.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(h) A ballot or revocation is not effective until received by the association.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(i) The association must give notice to unit owners of any action taken pursuant to this subsection within a reasonable time after the action is taken.</span></i></div><div style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 0.5in;"><i><span style="font-family: times; font-size: large;">(j) When an action is taken pursuant to this subsection, a record of the action, including the ballots or a report of the persons appointed to tabulate such ballots, must be kept with the minutes of meetings of the association.</span></i></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-48412015848616861122023-01-31T13:49:00.001-08:002023-01-31T13:49:28.694-08:00Technology Has Expanded Access to Specialized Legal Services<div style="text-align: justify;"><span style="font-size: large;"><span style="font-family: times;">In many counties in Washington state, t</span><span style="font-family: times;">here are no attorneys specializing in community association law located there. In the past, this would have limited the ability of community associations in those areas to obtain quality legal services in a timely manner. However, electronic mail and virtual meetings have made it possible for them to obtain such services from attorneys located anywhere in the state. If your association is located outside of the Puget Sound area and desires to work with an attorney with substantial experience assisting community associations, then you should consider contacting my office to find out how I can help you with your legal needs. </span></span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-46270011460284756292022-12-31T18:24:00.031-08:002023-01-02T11:36:05.034-08:00Celebrate the Board's Accomplishments!<div style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">Happy New Year! As we celebrate the beginning of 2023, boards should also publicly celebrate their accomplishments during the past year. Enforcing rules, maintaining common areas, and keeping associations on a solid financial footing is hard work, and owners often do not recognize this. Owners are less likely to be hostile or distrustful when they are regularly informed about boards' achievements.</span></span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-36608161514581779942022-12-16T15:41:00.000-08:002022-12-16T15:41:07.444-08:00Washington Court of Appeals Issues Opinion Concerning Water Trespass <div style="text-align: justify;"><span style="font-family: times; font-size: large;">The
Washington Court of Appeals recently issued an opinion concerning water
trespass. A homeowners association and one of its owners sued a golf club and
alleged that it artificially collected and discharged surface water into their
property in a manner different than the natural flow of such water. The Court remanded
this case to the trial court because there were issues of material fact
regarding whether the golf club committed water trespass. However, it also
provided a useful summary of such claims.</span></div><p class="Default" style="text-align: justify;"><span style="font-family: times; font-size: large;">Water
trespass may be intentional or negligent. Where the allegations concern
negligence, the plaintiff must prove duty, breach, causation, and damages. The
claims against the club involved surface water. Surface waters are ordinarily
those vagrant or diffused waters produced by rain, melting snow, or springs. Surface
water is distinct from water flowing in a natural watercourse which is defined
as a channel, having a bed, banks or sides, and a current in which waters, with
some regularity, run in a certain direction. Washington State has long followed
the “common enemy doctrine” for addressing alterations to the flow of surface
water. In its strictest form, the common enemy doctrine allows landowners to
dispose of unwanted surface water in any way they see fit without liability for
resulting damage to one’s neighbor. Washington State still follows the common
enemy doctrine, but its Supreme Court has recognized three exceptions to its
strict application because it is widely regarded as inequitable.</span></p>
<p class="Default" style="text-align: justify;"><span style="font-family: times; font-size: large;">Under
the “collect and discharge” exception, surface waters may not be artificially
collected and discharged on adjoining lands in quantities greater than, or in a
manner different from, the natural flow thereof. This rule prohibits a
landowner from creating an unnatural conduit, but allows him or her to direct
diffuse surface waters into pre-existing natural waterways and drainways. A
landowner may not, however, discharge surface water through a culvert or drain
artificially constructed and located apart from a natural watercourse or
natural drainway. It is not permitted to concentrate and gather surface water
into artificial drains or channels and throw it on the land of an individual
owner in such manner and volume as to cause substantial injury to such land and
without making adequate provisions for its proper outflow unless compensation
is made. Under the “due care” exception, a landowner who alters the flow of
surface water on their property is required to exercise their rights with due
care by acting in good faith and by avoiding unnecessary damage to the property
of others. Under the third exception, a landowner may not inhibit the flow of a
watercourse or natural drainway by, for example, damming it.</span></p>
<p class="Default" style="text-align: justify;"><span style="font-family: times; font-size: large;">Condominium
and homeowners associations in Washington State should keep the three exceptions
described by the Court in this opinion in mind when they take any action that
affects the flow of water on their property. </span><span style="font-family: Times New Roman, serif;"><o:p></o:p></span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-18616929225959692812022-11-28T11:59:00.000-08:002022-11-28T11:59:03.449-08:00Is the Board Thankful for Constructive Criticism?<div style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">Washington condominium and homeowners association boards are obligated to comply with and enforce the governing documents and state law. This will inevitably result in conflicts with owners who have different interests, priorities, and interpretations, and such conflicts sometimes involve heated words and unfair accusations. However, boards should make every effort to view owners' challenges to their decisions and authority as constructive criticism and learning experiences. This can both prevent unnecessary litigiation and produce better rules and policies.</span></span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-87628904685401551402022-10-06T11:24:00.000-07:002022-10-06T11:24:43.615-07:00Washington Court of Appeals Rules that Tenant's Spiral Staircase Suit May Proceed <div style="text-align: justify;"><span style="font-family: times; font-size: large;">The Washington Court of Appeals recently ruled in an unpublished opinion that the trial court erred when they decided on summary judgment that a condominium association did not owe a duty of care to its tenant and that the association's tenant assumed the risks associated with a spiral staicase separating two floors of the rented unit. </span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;">The court's opinion initially observes that landlords generally have no duty to protect tenants from dangers that are open and obvious, but it then points out that such a duty exists if the landlord should anticipate the harm despite such knowledge or obviousness. The opinion concludes that a genuine issue of material fact exists in this case as to whether the association had reason to expect the tenant would encounter the spiral staircase at issue "because, to a reasonable person in her position, the advantages of doing so would outweigh the apparent risk posed by the open and obvious dangers of the spiral staircase."</span></p><p style="text-align: justify;"><span style="font-family: times; font-size: large;">The court's opinion then applies the legal doctrine of implied unreasonable assumption of risk, which involves a person's voluntary choice to encounter a risk created by another person's negligence. This doctrine reduces the negligent person's liability based on comparative fault. The opinion concludes that a genuine issue of material fact exists in this case as to whether the tenant made a voluntary choice to encounter the additional risks posed by the spiral staircase at issue (angled bottom step, insufficient color contrast between bottom step and carpet, and narrow steps). </span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-49932814528090862872022-08-30T17:08:00.007-07:002022-09-02T11:39:24.839-07:00Court Affirms Homeowners Association's Decision to Grant Fence Variance<div style="text-align: justify;"><span style="font-family: times; font-size: large;">The Washington Court of Appeals ruled earlier this month that a homeowners association committee properly exercised its authority under real estate covenants to grant owners a variance for a boundary fence made of cedar. The covenants bestowed on the committee the sole and exclusive authority to consider and grant variances from any restriction and stated that the committee's decision is final. The committee visited the property at issue and determined that the replacement fence was more attractive than the original fencing, well-harmonized with the surrounding environment, matched many other solid cedar style fences in the community, did not significantly block light to the neighbors' property, and likely improved the value of neighboring properties. The Court upheld the committee's decision to grant a variance, pointing out that:</span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;"><span>"The Washington Supreme Court recently emphasized that homeowner association decision-makers are due significant deference in these situations: '[W]hen a homeowners' association makes a discretionary decision in a procedurally valid way, courts will not substitute their judgment for that of the association absent a showing of 'fraud, dishonesty, or incompetenance (i.e., failure to exercise proper care, skill, and diligence) [citation omitted].'" </span> </span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-50955067719817962412022-07-29T12:13:00.001-07:002022-07-29T12:13:30.828-07:00Washington Court of Appeals Rejects Owner's Assessment Exemption Claim<div style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">An owner in a condominium association recently refused to pay assessments on his unit and argued that he was exempt from doing so due to the association's mismanagement of common funds. The Washington Court of Appeals rejected the owner's argument. It ruled that the association was entitled to a summary judgment because the owner did not contest the amount of the unpaid assessments or the association's right to impose those assessments pursuant to the condominium's declaration. It further ruled that the owner had not submitted any evidence that the association had committed any acts or omissions that violated its duty to manage the common funds with ordinary and reasonable care.</span></span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-81150555768783069992022-06-29T12:00:00.002-07:002022-06-29T12:00:40.474-07:00Washington Court of Appeals Rejects Owner's "Right to Surveil" Claim<div style="text-align: justify;"><span style="font-family: times; font-size: large;">The Washington Court of Appeals ruled in a recent unpublished opinion that a homeowner who was bound by a protection order did not have the constitutional due process right to surveil his neighbors' allegedly illegal activity by photographing and videotaping them. The Court first noted that protecting citizens from harassment is a compelling state interest. It then pointed out that RCW 10.14.080(6)(b) authorizes a court to prohibit a harasser from making any attempts to keep the victim under surveillance.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">There are several state laws that may be invoked by any person suffering from unlawful harassment. The primary remedy under those laws is a protection order limiting the harasser's contact with the victim. If that order is violated, then the harasser is subject to additional civil and criminal penalties.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">If a community association receives a complaint from an owner that they are being subjected to unlawful harassment, then it should consult an attorney to determine whether such harassment is occurring and, if so, what actions the association should take to address that misconduct.</span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-69761505700188472362022-05-18T11:57:00.002-07:002022-05-18T11:57:28.176-07:00Washington State Approves Law Regarding Electric Vehicle Charging Stations<div style="text-align: justify;"><span style="font-family: times; font-size: large;">A new law in Washington state concerns electric vehicle charging stations. It prohibits community associations from<span style="text-indent: 0.5in;"> adopting or enforcing provisions in their governing documents that e</span><span style="text-indent: 0.5in;">ffectively prohibit or unreasonably restrict the installation or use of an electric vehicle
charging station in compliance with the new law's requirements for
the personal noncommercial use of a unit owner within the boundaries of a unit
or in a designated parking space. The new law also includes a number of other requirements and procedures pertaining to those</span><span style="text-indent: 48px;"> stations.</span></span></div><p style="text-align: justify;"><span style="font-family: times; font-size: large;"><span style="text-indent: 0.5in;">The new law </span><span style="text-indent: 48px;">requires community associations to generally promote, encourage, and remove obstacles to the installation and use of electric vehicle charging stations. However, it also </span><span style="text-indent: 0.5in;">permits community associations to impose reasonable restrictions on those stations. For example, community a</span><span style="text-indent: 0.5in;">ssociations may
require a unit owner to submit an application for approval for the installation
of an electric vehicle charging station</span><span style="text-indent: 0.5in;"> in the same
manner as an application for approval of an architectural modification.</span></span></p><p style="text-align: justify;"><span style="font-family: times; font-size: large;">The new law concerning electric vehicle charging stations will take effect on June 9. 2022. Washington state community associations should consider contacting an attorney regarding its contents and application.</span></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-63149096470666947192022-04-21T13:02:00.001-07:002022-04-21T13:02:32.490-07:00Washington Supreme Court Upholds Homeowners Association's Assessment Decision<div style="text-align: justify;"><span style="font-family: times;"><span style="font-size: large;">The Washington Supreme Court recently issued an opinion upholding a homeowners association's member-ratified decision to raise funds through a combination of use-based fees and per-lot assessments as authorized in its governing documents. An owner sued the association and claimed that its decision violated a section of the governing documents that required assessments to be charged on an equitable basis. The Court held that the association's governing documents grant the association broad discretion in setting assessments and that the association's decision on assessments was reasonable and entitled to substantial deference. The Court's analysis is described in the following paragraph.</span></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">When a covenant grants a homeowners association broad discretion in a particular area, that discretion must be exercised reasonably and in good faith. Discretion is not reaonably exercised when the procedures laid out in the governing documents and relevant statutes are not followed or when the information used in the decision-making process is not reasonably accurate. When a homeowners association makes a discretionary decision in a procedurally valid way, courts will not substitute their judgment for that of the association absent a showing of fraud, dishonesty, or incompetence. Reasonable care is required. The respect due to the self-governance of homeowners associations, the importance of finality in budgeting, and the avoidance of interfering in associations' ability to meet their financial obligations are important considerations. To hold otherwise would subject associations to lawsuits any time a homeowner disagreed with a discretionary choice made by the board and ratified by the members.</span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;"><br /></span></div><div style="text-align: justify;"><span style="font-family: times; font-size: large;">It is important to note that this decision was based on provisions of the association's governing documents that are not present in the governing documents of condominium associations and many homeowners associations. If your association has questions about how assessments may be charged or how budgets may be adopted, then it should seek legal advice from an attorney with experience in this area.</span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-53070095486153504652022-04-05T10:31:00.004-07:002022-04-06T13:39:13.353-07:00My Next Free Community Association Presentation Will Take Place on April 8<div style="text-align: justify;"><span style="font-family: times; font-size: large;">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,
April 8. This presentation will include information regarding a new state law
governing nonprofit corporations. 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.</span></div><p></p>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-8476973890540506451.post-36262375429375605772022-02-28T22:32:00.002-08:002022-02-28T22:33:07.156-08:00Heated Words or Unlawful Harassment?<div style="text-align: justify;"><span style="font-family: times; font-size: large;"><span style="line-height: 107%;">A petitioner for a
protective order must show they have been a victim of unlawful harassment.
“Unlawful harassment” is defined by RCW 10.14.020 to mean “a knowing and
willful course of conduct directed at a </span>specific person which seriously alarms, annoys, harasses, or
is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct
shall be such as would cause a reasonable person to suffer substantial
emotional di<span style="line-height: 107%;">stress, and shall actually cause
substantial emotional distress to the petitioner.” In a recent unpublished
opinion, the Washington Court of Appeals affirmed that one party’s accusation
that the other party was a prostitute was defamatory and constituted
harassment. Association boards should consider the above harassment standard
when deciding whether an owner's conduct warrants a warning letter or a
fine.</span></span></div><div><div><div><div><p class="MsoNormal" style="line-height: normal; margin-bottom: 0in; mso-layout-grid-align: none; text-align: justify; text-autospace: none;"><span 10.14.020="" a="" above="" accusation="" actually="" affirmed="" alarms="" an="" and="" annoys="" appeals="" as="" association="" at="" be="" been="" boards="" by="" cause="" conduct="" consider="" constituted="" course="" court="" deciding="" defamatory="" defined="" detrimental="" directed="" distress="" emotional="" fine.="" for="" harasses="" harassment.="" harassment="" have="" in="" is="" knowing="" lawful="" legitimate="" letter="" mean="" must="" nlawful="" no="" of="" one="" opinion="" or="" order="" other="" owner="" party="" person="" petitioner.="" petitioner="" prostitute="" protective="" purpose.="" rcw="" reasonable="" recent="" s="" seriously="" serves="" shall="" should="" show="" span="" specific="" standard="" style="font-family: "Times New Roman",serif; font-size: 12pt;" substantial="" such="" suffer="" that="" the="" they="" to="" unlawful="" unpublished="" victim="" warning="" warrants="" was="" washington="" when="" whether="" which="" willful="" would=""></span></p><p></p></div></div></div></div>Unknownnoreply@blogger.com