The Limited Effect of a Board's Failure to Comply with Meeting Requirements

As previously discussed on this blog, the state law that governs common interest associations in Washington state requires those associations to comply with numerous requirements relating to meetings. However, it also limits the consequences associated with a board's failure to comply with those requirements. The law first states that actions of a board that do not comply with meeting-related requirements are valid unless set aside by a court. It goes on to state that an action seeking relief for a board's failure to comply with those requirements may not be brought more than 90 days after the minutes of the meeting at which the action was taken are approved or the record of that action is distributed to unit owners, whichever is later.

My Next Legal Presentation for the Secretary of State Occurs on May 29

My next free virtual presentation about WUCIOA and other laws affecting community associations for the Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m. on Friday, May 29. It will describe those associations' duties and the state laws that apply to them. If you want to attend, then you should contact Melissa Harris at melissa.harris@sos.wa.gov. 

Legislature Approves New Law Regarding Owner Inquiries and Responses

The Washington State Legislature recently approved a new law regarding inquiries from owners in common interest communities and associations' responses to such inquiries. The full text of the new law is as follows:  

"(1) When a unit owner or the unit owner's authorized agent files a written inquiry by certified mail with the Association regarding one or more topics related to either Association governance or operations, or both, the Association must respond, in the form of a record, to the unit owner or the unit owner's authorized agent within 30 days after receipt of the inquiry. The Association must either give a substantive response to the inquirer or notify the inquirer that additional time is reasonably necessary to respond, such as when a legal opinion or other third-party professional opinion has been requested. For the purposes of this Section, a “substantive response” includes, but is not limited to, a factual explanation, reference to governing documents, statement of current Association practices, or other responsive information reasonably available to the Association. The  Association is not required to obtain a legal opinion or other third-party professional opinion in order to provide a substantive response unless reasonably necessary to address the inquiry.

(2) In any action or proceeding arising out of an inquiry subject to this Section including, but not limited to, any litigation, mediation, arbitration, or administrative proceedings, the prevailing party is entitled to recover its reasonable attorneys' fees and costs.

(3) The Association may adopt reasonable rules and regulations regarding the frequency and manner of responding to inquiries, one of which may be that the Association is only obligated to respond to one written inquiry per unit in any 30-day period. In such a case, the Association must respond to any additional inquiry or inquiries in the subsequent 30-day period, or periods, as applicable. Nothing in this Section precludes a unit owner from asking more than one question as part of a single inquiry."

This new law takes effect on June 11. If your association's board of directors has any questions about it, then it should consider contacting my office.

WUCIOA Permits Governing Documents to Vary Some Provisions

RCW 64.90 ("WUCIOA") is a comprehensive law that will apply to all Washington community associations on January 1, 2028. Associations' governing documents may not vary most of WUCIOA, but there are exceptions to that rule. RCW 64.90.015 below contains the following list of those exceptions: 

(a) RCW 64.90.020(1), concerning classification of a cooperative unit as real estate or personal property;

(b) RCW 64.90.030 (2) and (3), concerning reallocation of allocated interests and allocation of proceeds after a taking by eminent domain;

(c) RCW 64.90.360(4), 64.90.370, and 64.90.100, concerning elections regarding applicability of this chapter;

(d) RCW 64.90.100 (1), (2), and (3), concerning communities restricted to nonresidential uses;

(e) RCW 64.90.200(3) (a) and (b), concerning the timing of the conveyance of common elements to the association, and the vesting of real estate owned by the association on termination;

(f) RCW 64.90.210, concerning boundaries between units and common elements;

(g) RCW 64.90.240 (2) and (3), concerning reallocation of limited common elements;

(h) RCW 64.90.245(11), concerning horizontal boundaries of units;

(i) RCW 64.90.255, concerning alterations of units and common elements made by unit owners;

(j) RCW 64.90.260 (1) and (2), concerning relocation of boundaries between units;

(k) RCW 64.90.265 (1) and (2), concerning subdivision and combination of units;

(l) RCW 64.90.275, concerning sales offices, management offices, models, and signs maintained by a declarant;

(m) RCW 64.90.280 (1) and (3), concerning easements through, and rights to use, common elements;

(n) RCW 64.90.285 (1) and (8), concerning the percentage of votes and consents required to amend the declaration;

(o) RCW 64.90.290 (1) and (8), concerning the percentage of votes required to terminate a common interest community and priority of creditors of a cooperative;

(p) RCW 64.90.360(4)(a), concerning small communities;

(q) RCW 64.90.405 (4)(c) and (5)(c), concerning an association's assignment of rights to future income, the number of votes required to reject a proposal to borrow funds, and the right to terminate a lease or evict a tenant;

(r) RCW 64.90.410 (1) and (2), concerning the board acting on behalf of the association and the election of officers by the board;

(s) RCW 64.90.420(2), concerning costs of audits;

(t) RCW 64.90.435(1)(b), concerning election of officers by unit owners;

(u) RCW 64.90.440 (1) and (4), concerning responsibility for maintenance, repair, and replacement of units and common elements and treatment of income or proceeds from real estate subject to development rights;

(v) RCW 64.90.445 (1)(b) and (2)(i), concerning meetings;

(w) RCW 64.90.450, concerning quorum requirements for meetings;

(x) RCW 64.90.455 (3), (4), (5), and (8), concerning unit owner voting;

(y) RCW 64.90.465 (1), (2), and (7), concerning the percentage of votes required to convey or encumber common elements and the effect of conveyance or encumbrance of common elements;

(z) RCW 64.90.470 (2) and (11), concerning insurance where the units are attached, and insurance for a nonresidential common interest community;

(aa) RCW 64.90.475(2), concerning payment of surplus funds of the association;

(bb) RCW 64.90.485 (7) and (20), concerning priority and foreclosure of liens held by two or more associations;

(cc) RCW 64.90.505 (1) and (3), concerning the adoption of rules;

(dd) RCW 64.90.513(8), concerning responsibility for electric vehicle charging stations;

(ee) RCW 64.90.520(4), concerning the board's ability to remove an officer elected by the board;

(ff) RCW 64.90.525(1), concerning the percentage of votes required to reject a budget;

(gg) RCW 64.90.545(2), concerning applicability of reserve study requirements to certain types of common interest communities; and

(hh) RCW 64.90.580(7), concerning responsibility for heat pumps.

An Overview of Recent WUCIOA Revisions and Expansion

Several sections of RCW 64.90 ("WUCIOA") will become applicable to all common interest communities in Washington state on January 1, 2026. The full list of WUCIOA sections that will apply to all such communities on that date is:

(a) RCW 64.90.370 (election of preexisting communities) 

(b) RCW 64.90.405(1) (b) and (c) (association powers);

(c) RCW 64.90.445 (meetings);

(d) RCW 64.90.480(10) (assessments and capital contributions);

(e) RCW 64.90.502 (emergency);

(f) RCW 64.90.513 (electric vehicle charging stations);

(g) RCW 64.90.525 (budgets);

(h) RCW 64.90.545 (reserve studies);

(i) RCW 64.90.580 (heat pumps); and

(j) RCW 64.90.010 (definitions relating to above sections).

There have been a number of other revisions and additions to other sections of WUCIOA this year. Association boards should consider seeking legal advice regarding WUCIOA compliance in 2026 and beyond. The most important recent changes are:

1) Board meetings must begin with an owner comment period that is at least 15 minutes long. Owners may be limited to 90 seconds and further limited if more than 10 owners want to speak.

2) Meetings may be held via telephone, video, or electronic conference.

3) Meetings only require 7 days notice via electronic communication during emergencies.

4) Owners are entitled to review materials provided to Board members.

5) Meeting notice and recordkeeping requirements are further revised to promote transparency.

6) Decisions of committees to which the Board has delegated important authority must be approved by the Board as well.

7) Election ballots must include a space for write-in candidates.

8) Certain votes must be conducted via secret ballot, including elections, board member removals, and amendments. The results of those ballots must be recorded in the minutes. Persons may not access or count ballots in which they have an interest.

9) Associations must provide resale certificates in connection with sales of units.

10) Associations must offer a free assessment payment method.

11) Associations may not invest more than 50% of the reserve funds.

12) Associations must disclose more information about reserve studies, investments, and financial reports to owners.

13) Board approval may not be required for an owner to install an electric vehicle charging station unless it affects a common element or connects to shared electrical infrastructure.

14) Boards may not unreasonably withhold approval for installing heat pump systems in common areas.

15) Plat and miscellaneous communities containing 50 or fewer units with an annual average assessment of $1,000 or less are only subject to a few sections of WUCIOA.

New WUCIOA Meeting Requirements for Community Associations on January 1

The meeting requirements contained in WUCIOA (RCW 64.90.445) will apply to all community associations in Washington state on January 1. I have included the full text of the relevant statute below and highlighted certain sections of particular importance. If your association has questions about any of the provisions below, then it should consider seeking guidance from an attorney with experience in this area. 

(1) The following requirements apply to unit owner meetings:

(a) A meeting of the association must be held at least once each year. Failure to hold an annual meeting does not cause a forfeiture or give cause for dissolution of the association and does not affect otherwise valid association acts.

(b)(i) An association must hold a special meeting of unit owners to address any matter affecting the common interest community or the association if its president, a majority of the board, or unit owners having at least 20 percent, or any lower percentage specified in the organizational documents, of the votes in the association request that the secretary call the meeting.

(ii) If the association does not provide notice to unit owners of a special meeting within 30 days after the requisite number or percentage of unit owners request the secretary to do so, the requesting members may directly provide notice to all the unit owners of the meeting. The unit owners may discuss at a special meeting a matter not described in the notice under (c) of this subsection but may not take action on the matter without the consent of all unit owners.

(c) An association must provide notice to unit owners of the time, date, and place of each annual and special unit owners meeting not less than 14 days and not more than 50 days before the meeting date. Notice may be by any means described in RCW 64.90.515. The notice of any meeting must state the time, date, and place of the meeting and the items on the agenda, including:

(i) The text of any proposed amendment to the declaration or organizational documents; and

(ii) Any proposal to remove a board member or, if the declaration or organizational documents provide for the election of officers by the unit owners, any proposal to remove an officer.

(d) Unit owners must be given a reasonable opportunity at any meeting to comment regarding any matter affecting the common interest community or the association.

(e) A meeting of unit owners is not required to be held at a physical location if the meeting is conducted in accordance with subsection (3) of this section.

(f) In the notice for a meeting held at a physical location, the board may notify all unit owners that they may participate remotely in the meeting by a means of communication described in subsection (3) of this section.

(2) The following requirements apply to meetings of the board and committees authorized to act for the board:

(a) Meetings must be open to the unit owners except during executive sessions, but the board may expel or prohibit attendance by any person who, after warning by the chair of the meeting, disrupts the meeting. The board and those committees may hold an executive session only during a regular or special meeting of the board or a committee. A final vote or action may not be taken during an executive session.

(b) An executive session may be held only to:

(i) Consult with the association's attorney concerning legal matters;

(ii) Discuss existing or potential litigation or mediation, arbitration, or administrative proceedings;

(iii) Discuss labor or personnel matters;

(iv) Discuss contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage; or

(v) Prevent public knowledge of the matter to be discussed if the board or committee determines that public knowledge would violate the privacy of any person.

(c) For purposes of this subsection, a gathering of members of the board or committees at which the board or committee members do not conduct association business is not a meeting of the board or committee. Board members and committee members may not use incidental or social gatherings to evade the open meeting requirements of this subsection.

(d) During the period of declarant control, the board must meet at least four times a year. At least one of those meetings must be held at the common interest community or at a place convenient to the community. After the transition meeting, unless the organizational documents provide otherwise, and except as otherwise provided in subsection (3) of this section, all board meetings must be at the common interest community or at a place convenient to the common interest community.

(e) At each board meeting, the board must provide a reasonable opportunity for unit owners to comment regarding matters affecting the common interest community and the association. The board must provide at least 15 minutes at the beginning of each meeting for unit owners to comment about agenda items before the board votes. The board may place reasonable time restrictions of not less than 90 seconds per owner per unit, except that the time per owner per unit may be reduced and allocated equally if more than 10 unit owners wish to comment.

(f) Unless the meeting is included in a schedule given to the unit owners, the secretary or other officer specified in the organizational documents must provide notice of each board meeting to each board member and to the unit owners. The notice must be given at least 14 days before the meeting and must state the time, date, place, and agenda of the meeting. Notwithstanding the foregoing, notice of a meeting to address an event or condition that could not have been reasonably foreseen and for which it is impracticable to provide notice as otherwise required by this chapter must be given at least seven days before the meeting and by means of electronic communication to unit owners whose electronic address or phone number is known to the association.

(g) If any materials are distributed to the board before the meeting, the board must make copies of those materials reasonably available to the unit owners, except that the board need not make available copies of unapproved minutes or materials that are to be considered in executive session.

(h) Notwithstanding the governing documents, fewer than all board members may participate in a regular or special meeting by or conduct a meeting through the use of any means of communication by which all board members participating can hear each other during the meeting. A board member participating in a meeting by these means is deemed to be present in person at the meeting.

(i) Prior to the transition meeting, without a meeting, the board may act by unanimous consent as documented in a record by all its members. Actions taken by unanimous consent must be kept as a record of the association with the meeting minutes. After the transition meeting, the board may act by unanimous consent only to undertake ministerial actions, actions subject to ratification by the unit owners, or to implement actions previously taken at a meeting of the board.

(j) A board member who is present at a board meeting at which any action is taken is presumed to have assented to the action taken unless the board member's dissent or abstention to such action is lodged with the person acting as the secretary of the meeting before adjournment of the meeting or provided in a record to the secretary of the association immediately after adjournment of the meeting. The right to dissent or abstain does not apply to a board member who voted in favor of such action at the meeting.

(k) A board member may not vote by proxy or absentee ballot.

(l) Even if an action by the board is not in compliance with this section, it is valid unless set aside by a court. An action seeking relief for failure of the board to comply with this section may not be brought more than 90 days after the minutes of the board of the meeting at which the action was taken are approved or the record of that action is distributed to unit owners, whichever is later.

(3) Notwithstanding the governing documents, any meeting may be held by telephonic, video, or other conferencing process if:

(a) The meeting notice states the conferencing process to be used and provides information explaining how to participate in the conference;

(b) The process provides all participants the opportunity to hear or perceive the discussion and to comment as provided in subsection (2)(e) of this section;

(c) Any votes of the board members are conducted by roll call or other verbal vote; and

(d) Any person entitled to participate in the meeting is given the option of participating by telephone.

(4) Minutes of all unit owner meetings and board meetings, excluding executive sessions, must be maintained in a record. The decision on each matter voted upon at a board meeting or unit owner meeting must be recorded in the minutes.

My Next WUCIOA Presentation for the Secretary of State Will Be on October 10!

My next free virtual presentation about WUCIOA and other legal issues affecting community associations for the Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m. on Friday, October 10. It will describe those associations' duties and the state laws that apply to them. If you want to attend this presentation, then you should contact Melissa Harris at melissa.harris@sos.wa.gov. 

Celebrating Twenty Years of Representing Washington Community Associations!

It recently dawned on me that I have focused on community association law for twenty years. It has been a rewarding experience to assist associations with their legal issues and establish productive long-term relationships with them during that time. If your association does not have an attorney or has one who does not specialize in this area, then it should consider contacting me to learn more about my expertise and approach. I may be the right choice for it too!            

My Next Presentation for the Washington Secretary of State Will Occur on May 9!

My next free virtual presentation about legal issues pertaining to community associations for the Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m. on Friday, May 9. It will describe those associations' duties and the state laws that apply to them. If you want to attend this presentation, then you should contact Melissa Harris at melissa.harris@sos.wa.gov. 

Selecting the Right Attorney for Your Commmunity Association

Every community association needs legal guidance from time to time. If your association has not established a relationship with an attorney yet, then it should seek to work with one who focuses their practice on this area, possesses substantial experience, and provides efficient services. Communication style and personality should be considered as well. I place particular emphasis on brevity and clarity when conveying advice, and my clients often remark that they appreciate my informality and practicality. Feel free to contact me to discuss your association's needs and how I can help you address them.

Washington Court of Appeals Addresses Boundary Tree Trespass Claim

Two lot owners in a homeowners association share a property line which runs parallel to a row of Leyland Cypress trees. Some of those trees are located entirely on one property, but some straddle the common property line. One owner removed approximately the top third of the trees. The other owner sued for timber trespass under RCW 64.12.030. In a recent unpublished decision, Division II of the Washington Court of Appeals decided that the defendant did not have the authority to cut the trees in that manner. It noted that trees located directly on property lines are the common property of the adjoining owners and that each owner is entitled to maintain such boundary trees as long as their maintenance does not interfere with the rights of the other owner. In this case, such substantial cutting reduced the trees' effectiveness as a privacy screen for one of the owners.

Happy New Year!

I look forward to assisting my community association clients with their legal issues in 2025. Washington state law pertaining to community associations has changed in significant respects over the past several years, and my office is here to help you understand and react to those changes.         

WA Court of Appeals Upholds HOA's Enforcement of Home Business Restriction

Division Two of the Washington Court of Appeals recently published an opinion concerning the validity of an owner's business-related activities within a homeowners association. It decided that the owner's conduct violated one of the covenants that governed the property. The court also rejected the owner's argument that the association had waived its right to enforce that covenant.   

The association’s common space contains an airstrip that all property owners have a right to use for their private planes. The use of the airstrip is subject to restrictions outlined in a set of recorded covenants, including a prohibition on home businesses unless they are entirely within the owner's residential structures and operate in a manner that gives no outward appearance of a business.

The owner's business trained five or six students daily on wing walking within their hangar. Wing walking is climbing from the cockpit to the upper wing rack and along the lower wing and climbing around the exterior of the plane with a safety harness and cable. Training included lessons, photos, and a flight. Students arrived around 8:30 a.m. in four to six cars. Three planes were kept on the property and shuffled in and out of the runway. Only one student could be trained at a time while the others congregated inside and outside the hangar structure. The court held that operating this home business in this manner gave an outward appearance of a business and thus violated the covenant at issue. 

The court also decided that the association did not waive its right to enforce the home business restriction. It first pointed out that the set of covenants expressly includes a provision that failure to enforce any covenant or restriction is not a waiver of the right to do so in the future. The court further noted that there was no evidence that the association had stated an intention to relinquish its right to enforce this covenant.

Beneficial Owner Information Report Requirement Remains on Hold

A federal law named the Corporate Transparency Act was recently ruled to be applicable to incorporated community associations. This ruling imposes new reporting obligations on those associations and their directors.

 

Incorporated community association boards must file a Beneficial Owner Information (BOI) report with the U.S. Treasury by January 13, 2025. The BOI report requires certain information to be disclosed about property owners who have substantial ownership or management interests in the association, including the current members of its board of directors. Each director must first obtain what is called a FinCEN number. A designated director must then complete a BOI Report listing the name of the association, its tax ID number, and the FinCEN numbers of its current directors. Associations are required to update their BOI Report within 30 days the date that they appoint a new director or a director resigns.

Incorporated community associations should consult the FinCEN guidelines, their accountants, and their legal counsel if they have questions about this new reporting requirement. 

UPDATE: As of January 24, 2025, an injunction remains in place against the above statute, so associations are not required to file BOI reports for the time being.  

Court Rules HOA May Not Enforce Time-Based Restriction on Political Yard Signs

The Washington Court of Appeals recently affirmed that homeowners associations (HOAs) that are still subject to RCW 64.38 may not impose time-based restrictions on owners' display of political yard signs. RCW 64.38.034(1) (which governs HOAs created before July 1, 2018, but not condominium associations of any age) states that HOAs' governing documents "may not prohibit the outdoor display of political yard signs by an owner or resident on the owner or resident's property before any primary or general election." Those documents may only "include reasonable rules and regulations regarding the placement and manner of display of political yard signs."   

HOAs created on or after July 1, 2018 and older HOAs that have adopted RCW 64.90 in its entirety are governed by RCW 64.90.510(2), which expressly authorizes them to "adopt rules governing the time, place, size, number, and manner" of political signs. This court decision does not affect those associations.  

WA Court of Appeals Rules HOA's Adopted Covenant Is Valid Change to CC&Rs

Division One of the Washington Court of Appeals recently published an opinion concerning the power of a homeowners association governed by RCW 64.38 (to be distinguished from those governed by RCW 64.90 and condominium associations governed by RCW 64.32, RCW 64.34, or RCW 64.90) to change its set of covenants, conditions, and restrictions (CC&Rs). The association's CC&Rs restricted its members from obstructing one another's views with six foot tall fences and outbuildings and granted them the authority to change it with seventy-five percent approval. The association adopted a covenant increasing the height constituting an obstruction to fifteen feet and expanding the type of obstructing object to trees and vegetation. An owner argued that this was not a change to the CC&Rs but a new covenant that was not authorized by that document.

Changing the CC&Rs cannot involve eliminating an existing covenant or adding a restriction where none existed before - only modifying that document in a manner that results in less of something (fewer things are restricted or restrictions are lessened) or more of something (more things are restricted or existing restictions are increased). The appeallate court decided that the adopted covenant was a valid change to the CC&Rs rather than an invalid new covenant because it increased certain view obstruction restrictions already in that document. 

New Law Limits Community Associations' Authority to Deny Heat Pump Applications

A new state law concerning heat pumps took effect last month. Community associations in Washington state may not effectively prohibit or unreasonably restrict owners from installing heat pumps in compliance with the new law's requirements. However, those associations may impose reasonable restrictions on heat pump installations and require owners to submit applications for approval of such installations. The term "reasonable restriction" means a restriction that does not significantly increase the cost of a heat pump or signifiantly decrease its efficiency or specified performance. If community associations require owners to submit heat pump applications, then they must approve each proposed installation if it is reasonably possible and the owner agrees in writing to (a) comply with the association's reasonable architectural standards applicable to the installation, b) engage an HVAC contractor familiar with the standards for the installation of heat pumps to assess the existing infastructure necessary to support the proposed heat pump, identify additional infastructure needs, and install the heat pump, and c) comply with the requirements of the new law.

Community associations must process and approve heat pump applications in the same manner as architectural modification applications. If heat pump applications are not denied in writing within sixty days from the date of receipt, then they are deemed approved unless that delay is the result of a reasonable request for additional information. Associations may not charge fees relating to heat pump installations except for reasonable application processing fees that apply to architectural modification applications.           

WUCIOA Will Apply to All Washington State Community Associations in 2028

Several laws relating to Washington condominium and homeowners asociations were recently approved. The most important of them states that the Washington State Common Interest Ownership Act ("WUCIOA") will automatically apply to all such community associations beginning on January 1, 2028. This comprehensive law contains many new provisions governing associations' internal affairs. You can review the full law here. 

Association boards should consider consulting with a qualified attorney to learn about their legal obligations under WUCIOA. They should also consider amending their associations' governing documents to bring them into accordance with WUCIOA.

Celebrating My Office's Fifteen-Year Anniversary!

It is hard to believe that I opened my law office fifteen years ago today. It was an exciting day, but it was also a terrifying one. Would the office succeed? I am so thankful that the answer has turned out to be a resounding yes! I look forward to providing my present and future clients with quality legal services for many years to come.       

Court of Appeals Resolves Dispute Between Competing Community Association Boards

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.