Conducting a Vote Without a Meeting

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.   

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:

(a) The association must notify the unit owners that the vote will be taken by ballot.

(b) The notice must state:

(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;

(ii) The percent of votes necessary to meet the quorum requirements;

(iii) The percent of votes necessary to approve each matter other than election of board members; and

(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.

(c) The association must deliver a ballot to every unit owner with the notice.

(d) The ballot must set forth each proposed action and provide an opportunity to vote for or against the action.

(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.

(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.

(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.

(h) A ballot or revocation is not effective until received by the association.

(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.

(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.

Technology Has Expanded Access to Specialized Legal Services

In many counties in Washington state, there 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.  

Celebrate the Board's Accomplishments!

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.

Washington Court of Appeals Issues Opinion Concerning Water Trespass

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.

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.

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.

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.