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.   

Is the Board Thankful for Constructive Criticism?

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.

Washington Court of Appeals Rules that Tenant's Spiral Staircase Suit May Proceed

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. 

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."

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).            

Court Affirms Homeowners Association's Decision to Grant Fence Variance

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:

"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].'"      

Washington Court of Appeals Rejects Owner's Assessment Exemption Claim

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.

Washington Court of Appeals Rejects Owner's "Right to Surveil" Claim

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.

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.

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.

Washington State Approves Law Regarding Electric Vehicle Charging Stations

A new law in Washington state concerns electric vehicle charging stations. It prohibits community associations from adopting or enforcing provisions in their governing documents that effectively 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 stations.

The new law requires community associations to generally promote, encourage, and remove obstacles to the installation and use of electric vehicle charging stations. However, it also permits community associations to impose reasonable restrictions on those stations. For example, community associations may require a unit owner to submit an application for approval for the installation of an electric vehicle charging station in the same manner as an application for approval of an architectural modification.

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.

Washington Supreme Court Upholds Homeowners Association's Assessment Decision

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.

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.

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.

My Next Free Community Association Presentation Will Take Place on April 8

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.

Heated Words or Unlawful Harassment?

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 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 distress, 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.

New Washington Nonprofit Corporation Act Took Effect on January 1

A new comprehensive law governing Washington nonprofit corporations took effect on January 1. Condominium and homeowners associations located in Washington state that are organized as nonprofit corporations are required to comply with that new law except to the extent that the other statutes applicable to them take precedence over it. The most important portion of that new law from their perspective pertains to records retention and production.   

The new law contains an extensive list of records that must be kept, including governing documents (articles of incorporation, covenants, bylaws, and rules), minutes of all meetings of the members and of the board, all records produced by committees, records of all actions taken by unanimous consent, all communications with members that are in the form of a record for the past six years, a list of the names and addresses of the directors and officers, the most recent annual report, appropriate accounting records, and a record of all members that contains their names and addresses and the number of votes that each of them possesses.

The new law establishes that all members of a nonprofit corporation have the right to review its records. A member who wishes to do so must deliver an executed notice describing in detail the records that they want to review to the corporation at least five days before the date on which the member or their agent seeks to review the records. The member must be acting in good faith and for a proper purpose, and the requested records must relate directly to that purpose. Certain records may be withheld by the corporation, including attorney-client or work product records, confidential addresses, records that would cause harm to the corporation if they were disclosed (such as disciplinary proceedings) and records required to be kept confidential by law or an agreement with a third party. 

The new law permits nonprofit corporations to provide records to members in either a tangible form or an electronic form. If records are provided in a tangible form, then corporations are permitted to charge reasonable fees that do not exceed the cost of reproduction.    

The entire new law can be reviewed here.