The Gift of Guidance

Happy Holidays!  If your condominium or homeowners association does not currently work with an attorney, consider giving it the gift of legal guidance in 2018.      

Washington Appellate Court: Condominium Bylaws Amendment Is Invalid

A recent Washington unpublished opinion concerned the amendment of a condominium association’s bylaws.  The condominium’s declaration stated that amending the bylaws required the approval of a majority of the unit owners.  The bylaws were amended in 2015 without the approval of a majority of the unit owners, and an owner challenged the validity of that amendment.  The Court of Appeals ruled that the bylaws amendment was invalid.

The invalid 2015 bylaws amendment authorized the condominium association to impose assessments for limited common area expenses against the individual unit owners to which the limited common areas were assigned.  Since the declaration and the applicable state law did not authorize the imposition of limited common area expense assessments, the Court of Appeals ruled that the association could not impose such assessments.

Washington condominium and homeowners associations should obtain legal advice before they seek to amend their governing documents.    

Halloween: A Scary Time for Seattle-Area Condos and HOAs (and Their Attorneys)

Each year, some Seattle-area condos and HOAs are compelled to enforce their governing documents in response to Halloween-related activities.  One common type of enforcement action relates to installation of decorations that pose a fire hazard or otherwise violate the governing documents.  Another common type of enforcement action relates to the vandalism and other acts of malicious mischief that sometimes occur on Halloween.  Community associations can impose fines in response to these types of activities if properly adopted and distributed fine schedules are in place.  If fines are contested, then associations should consider obtaining legal guidance. 

My law office is available to help Seattle-area condos and HOAs understand and enforce their governing documents.

Homeowners Association Orders Owner to Remove Tank

Even the parking disputes are bigger in Texas.

Houston attorney Tony Buzbee recently purchased a fully-functional World War II tank for $600,000. The board of his homeowners association was not pleased when Mr. Buzbee proceeded to park that tank outside his home. "It's not violating any ordinance, but it makes them uncomfortable," he said. The board informed Mr. Buzbee that the tank impeded traffic, caused a safety issue, and concerned some of his neighbors.

Mr. Buzbee has indicated that intends to relocate the tank to his East Texas ranch in the near future.  However, he has also stated that the tank will remain where it is for the time being. "The association can ticket it or try to tow it, but the truth is that unless I decide to move it, it ain’t going anywhere."

Can Landlords Reject Prospective Tenants With Criminal Histories?

Seattle politicians are considering legislation to limit the ability of landlords to reject potential tenants due to their criminal records.  Under the proposed new law, landlords would be prohibited from posting ads barring people with criminal convictions from applying for housing and from asking prospective tenants about convictions more than two years old, arrests that did not result in convictions, pending charges, juvenile records, or convictions that have been expunged.  However, it is important to note that prospective tenants already have some protections from such conduct under state and federal law even if that proposed Seattle law is not approved.   

The Fair Housing Act and the Washington Law Against Discrimination prohibit discrimination in rental or real estate transactions on the basis of race.  If a rental policy has a disparate impact on a group of people because of their race, it is unlawful.  Since certain groups of people, such as African-Americans, have higher statistical rates of arrests and convictions, blanket bans on tenants with criminal histories make it more difficult for those groups of people to find housing.  This disparate impact renders blanket policies excluding people with criminal histories from rental eligibility illegal. 

Criminal history may still be a valid ground to refuse to rent to a person, but landlords must consider the type and severity of the offense and how long ago the offense occurred.  They must be able to show that policies restricting applicants with criminal convictions serve a substantial, legitimate, nondiscriminatory interest.  In order to do so, landlords must be able to demonstrate that such policies accurately distinguish between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not indicate such a risk.

Community associations may thus not impose a total ban on tenants with criminal histories when they rent property to others.  Associations may also not adopt rules or policies that forbid owners from renting their units to persons with any kind of criminal history. Failure to follow these guidelines could result in substantial monetary penalties and costly litigation. 

UPDATE: Seattle adopted an even more restrictive law regarding disclosure of potential tenants' criminal histories than the proposed law described above.  Under the approved law, landlords who are not leasing a part of their own primary residence may only seek information from potential tenants about adult sex offense convictions.  Such landlords are otherwise prohibited from seeking information about potential tenants' criminal histories. Only landlords who are leasing a part of their own primary residence may still require potential tenants to provide criminal histories. 

Collection Options for Community Associations

Assessments are the lifeblood of community associations.  If owners fail to pay their assessments, then associations can not perform their duties.  Once reminder notices have proven ineffective, associations should consider taking legal action to collect delinquent assessments.  The available collection options always include a lien foreclosure action and a personal lawsuit followed by garnishment.  Community associations may also have the ability to terminate the utilities of delinquent units if their governing documents provide for that option.  Consistent application of a written collection policy is advisable.

If your community association is struggling to collect delinquent assessments, then my office is available to help you resolve that issue.

Washington Court of Appeals Reverses Trial Court's Partition of Common Area

The Washington Court of Appeals ruled in an unpublished opinion last month that partition of a common area created by the deeds of four adjacent properties was not a remedy available to the trial court when the property owners could not agree about the use or maintenance of that common area. 

Each residential property owner in this case also owned an undivided one-fourth interest in a common area.  The Court held that the co-owners' equitable interests in the common area would be defeated if it were to be partitioned without the agreement of all four of them.  It then shifted to the central dispute regarding a tennis court on the common area - concluding that "[w]hether the tennis court is to be maintained or replaced, all owners are entitled to have the action taken in a reasonable and timely manner, overseen by the trial court if necessary." The Court emphasized that leaving the tennis court in a state of "perpetual disrepair" is not  an acceptable outcome.

Court of Appeals Upholds Homeowners Association's Application of Bylaws

The Washington Court of Appeals recently upheld a homeowners association's interpretation and application of its bylaws in a published opinion.  Members of the association challenged its authority to impose membership fees and liens because they claimed that its board of directors was improperly constituted.  The association had attempted to elect board members every year, but there was no quorum at the annual meetings. The association responded by acting according to sections of its bylaws and state law that allow an appointed board member to serve out the unexpired portion of a "term"; that is, until a quorum can be reached and a proper election can be held.  The Court ruled that the association's actions to maintain a functioning board were valid.  It pointed out that the approximately 10,150 homeowners associations located in Washington "must be given room to interpret and apply their own governing documents as long as the result is neither arbitrary nor unreasonable."     

The Importance of Seeing Both Sides

I just had a most unpleasant conversation with another attorney. This individual was extremely hostile and never budged from his strident position. He was either unwilling or unable to consider my client's side of the dispute.  It was obviously an unproductive conversation. I felt angry that he was preventing the problem from being appropriately resolved.

It is rare that one party is completely in the right.  I pride myself on making every effort to see the other person's point of view, and many clients have complimented me on my ability to do so. This allows me to help community associations avoid lengthy legal conflicts.  

Small Associations Need Lawyers Too!

Many boards of small condominium and homeowners associations believe that legal services are out of their financial reach.  However, this is not the case if they work with my office.  We have productive relationships with a large number of small community associations, and one of the keys to our success in that area is our ability to achieve associations' goals both effectively and efficiently.  Sometimes a brief phone call or email is all it takes to resolve an issue or avoid a mistake.  If your association does not have an attorney to help it understand its obligations and enforce its documents, then it should rectify that situation as soon as possible.  

Washington Court of Appeals Issues Redemption Act Opinion

The Washington Court of Appeals recently issued a published opinion regarding the application of the Washington Redemption Act (RCW 6.23).  The Court held that "a condominium owner occupying the condominium as a residence at the time of a judicial foreclosure of a condominium lien has the right to possession during the redemption period, with no obligation to pay for the value of the occupation." However, the Court also noted that "nonjudicial foreclosure of the assessment lien is not subject to the right of possession."

Foreclosing a lien is a difficult decision.  My office can help your association evaluate its foreclosure options.

Washington Court of Appeals Rules in Favor of Association in Collection Dispute

The Washington Court of Appeals ruled in favor of a Camas homeowners association’s actions concerning board membership and delinquent assessments in a recent unpublished opinion.  The Court's opinion begins by stating that “[w]e afford great deference to an organization’s interpretation of its Bylaws, and will only invalidate an interpretation if it is arbitrary and unreasonable …. [H]omeowners associations must be given room to interpret and apply their own governing documents.”  The opinion points out that the association unsuccessfully attempted to elect board members every year and that in the absence of a quorum the association was permitted to allow an appointed board member to serve out the unexpired portion of a term until a quorum could be reached and a proper annual election could be held. The Court's opinion concludes that the association’s board is properly constituted and that the association has the power to collect assessments and record liens.