Washington Courts Reject Owners' Claim to Own Portion of HOA's Common Areas

A deck adjacent to a townhome in Kirkland, Washington was rebuilt by a homeowners association in a manner that encroached more than fifty feet into its common areas.  The association later discovered that the deck was significantly larger than allowed and gave the owners of the townhome two options: 1) take over maintenance of the deck or 2) allow the association to remove and rebuild the deck to the appropriate specifications. The owners rejected both options and sued the association, alleging among other claims that they had acquired ownership of the portion of the common areas affected by the deck encroachment through adverse possession. The trial court dismissed the owners' lawsuit, and the Court of Appeals affirmed that decision.  

The Court of Appeals initially pointed out in its unpublished opinion that the Washington Growth Management Act bars adverse possession claims against homeowners associations' common areas.  It went on to note that the association's decision to take no action against decks that encroached less than fifty feet into its common areas was a reasonable exercise of its enforcement power that sought to balance the harm associated with violations with the costs associated with enforcement and the risks associated with litigation.  The Court concluded by ruling that under the association's declaration the owners must pay the association's legal fees because their lawsuit resulted in the enforcement of a covenant.

Washington Supreme Court Reinstates Verdict in Favor of Injured Guest

After a night of drinking with friends, a woman fell from the second-story balcony of her boyfriend's apartment when its decayed balcony railing gave way. She sued the owner of the apartments, arguing that its failure to maintain and repair that railing caused her fall and violated its duties to tenants and their guests. A jury agreed. The Washington Court of Appeals overturned the jury's verdict. The Washington Supreme Court reversed that ruling and reinstated the jury's verdict in favor of the injured woman. 

The Court decided that the owner of the apartments was negligent because its breach of its common law duty to provide each of its tenants and their guests with a habitable residence was a proximate cause of the woman's injury. As the Court stated in a previous opinion: "When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services: a package which includes not merely walls and ceilings, but adequate heat, light, and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance." 

Washington condominium and homeowners associations are legally obligated to ensure that the common areas for which they are responsible are maintained, repaired, and replaced in a timely manner and in accordance with professional guidance. 

Dog Waste Problem May Cause Board to Implement Drastic Measures

The Scarlett Place Condominium in Baltimore is in the midst of a pooch poop predicament. According to a recent story in The Baltimore Sun, one board member believes that the amount of dog waste that is regularly left in the common areas has gotten out of hand, and he has proposed a novel way to identify the culprits – DNA testing. All dog owners would be assessed $50 per animal to cover testing costs and $10 per month to cover removal costs. A Tennessee-based company would create a database representing all pets at the Condominium and match offending samples to a particular dog. The dog’s owner would then pay a $500 fine.

Boards of Washington condominium and homeowners associations should be cautious when contemplating new regular assessments on a specific group of owners. Assessments must generally be charged on the basis of the percentages or values found in the association’s declaration or covenants. The Washington Condominium Act does permit all condominium associations in the state to charge common expenses benefiting fewer than all of the units exclusively to the units that are benefited, but only if such authority is explicitly provided for in their declarations. If an association’s declaration does not provide for the authority to charge certain common expenses to benefited owners, the declaration can be amended to give the association that power.

There are other possible ways to deal with dog waste that do not involve new assessments on dog owners or fines for noncompliance with removal rules. For example, dog owners could be persuaded to periodically assign one of their number to pick up the poop. The association could also include a line item in the annual budget to pay an owner to perform this task.

Washington Supreme Court Resolves Dispute Over Addition to Bellevue Condominium

The Washington Supreme Court issued an important decision last month regarding the Horizontal Property Regimes Act (the state law that governs condominiums created on or before July 1, 1990). This decision is significant for two reasons. First, the first few pages of the Court’s opinion provide an excellent overview of the Act. Second, the Court’s opinion clarifies that an owner in an older condominium can expand his apartment into the common area with board approval if the association’s declaration permits it.

An owner at the Woodcreek Condominium in Bellevue, Washington built a second story addition to his townhouse-style condominium apartment with the approval of the Woodcreek Condominium Association. This new addition blocked light to and views from another apartment, and the owner of that apartment sued the first owner and the association, arguing that the common areas either could not be divided or could not be combined with an apartment without a unanimous vote of the owners. The Court rejected those arguments and ruled in favor of the owner who built the addition and the condominium association.

The Court first held that the Act and the association’s declaration do not bar the division of a condominium’s common areas. It next held that the Act and the declaration do not require the unanimous consent of the owners to combine a portion of the common area with an apartment. The Court explained that the unanimous consent provision in the Act only applies to changes in the percentage ownership rates assigned to each apartment. It also noted that the association’s targeted increase in the assessments charged to the owner that completed the addition was invalid.

This case serves as a reminder to condominium boards and owners to determine whether Washington law and the governing documents allow them to pursue courses of action that affect others. Older condominiums face many challenges as they evolve, and owners' interests will sometimes clash. A thorough understanding of Washington law and the declaration is essential to resolving these conflicts without costly litigation.

Condominium Safety – The Art of Preventing Injuries in Common Areas

Whitewater rafting can be an exhilarating experience. Who needs roller coasters when you can hurtle down a raging river at breakneck speed? However, the risk of striking sharp rocks that are obscured by water and foam is ever-present. Rafters must keep a watchful eye on the river ahead and steer clear of problem areas. Managing the common areas of a condominium requires a similar vigilance.

Condominium associations have a legal duty to maintain common areas in a safe condition. Failure to comply with applicable laws may be viewed by judges and juries as evidence of negligence. If the boards of condominium associations are or should be aware of dangerous conditions in common areas and fail to take prompt action to remedy those conditions, those associations and the members of their boards could end up on the losing end of negligence lawsuits and be liable for significant damages. It is therefore important for condominium boards to always be on the lookout for potential dangers in the common areas of their condominiums.

There are many ways in which an ounce of prevention can equal a pound of cure. Better lighting in common areas can reduce criminal activity and allow residents to spot tripping hazards in advance. Visual inspections of the premises by a board member can identify rotting wood in common area structures before a collapse occurs. Maintenance of sprinkler systems can limit the damage from a fire. Promptly clearing ice from entryways and sidewalks can reduce slip and fall incidents. The key is to spend time trying to anticipate hazards.

Condominium boards should make common area safety one of their top priorities. This involves taking owners’ safety-related concerns seriously, seeking professional guidance regarding the laws that their associations must follow, inspecting the common areas on a regular basis, and causing necessary maintenance, repair, and replacement of common areas to occur at the appropriate times. If boards perform their duties in this manner, they will help their associations avoid some of the rocks that lurk downstream.

Smoking in Common Areas - Permit or Restrict?

As the old saying goes, where there’s smoke there’s fire. Community association boards are sometimes confronted by the fire of owners’ anger when they are bothered by other owners’ cigarette smoke. However, boards do not have the power to prevent owners from smoking in their units and in the common areas unless there are restrictions on smoking in their associations’ governing documents (the 2005 Seattle initiative restricting smoking does not apply to condominium and homeowners associations).

A recent lawsuit in California illustrates how far some owners are willing to go to be free of cigarette smoke. The Oakwood Apartments permit smoking in the outdoor common areas of the complex. Melinda Birke, a five-year old girl who has allergies and asthma, lives at Oakwood. Secondary smoke in the outdoor common areas made her symptoms worse and contributed to her falling ill with pneumonia on three occasions. Melinda’s father asked the board to ban smoking in those areas, but it refused to do so. Melinda then filed a lawsuit against Oakwood alleging that the failure to ban smoking in the outdoor common areas constituted a public nuisance. Oakwood filed a motion to dismiss Melinda’s lawsuit. The court ruled that Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and that Melinda could prevail if she submits evidence at trial that supports the elements of her public nuisance claim.

It is difficult to predict how a Washington court would rule if it was presented with the facts in the Oakwood case. The nuisance statute in Washington states in part that a failure to perform a duty is a public nuisance if it “annoys, injures, or endangers the comfort, repose, health, or safety of others” and “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal”. Given this broad definition of public nuisance, the outcome of the case would likely depend on how the court characterized the association’s duty to regulate the use and maintenance of the common areas. The fact that many associations’ governing documents contain a section prohibiting “noxious or offensive activities” and “conduct which may be an annoyance or nuisance” could also form the basis for a separate legal claim.

The Oakwood case demonstrates that condominium and homeowners associations which allow smoking in their common areas could potentially be subject to liability. As a result, boards may wish to consider amending their governing documents to ban or restrict smoking in common areas. The applicable laws in Washington give condominium and homeowners associations the general power to regulate the use and maintenance of common areas. Rules banning or restricting smoking in common areas can therefore be adopted by boards without a vote of the owners unless there are contrary provisions in their associations’ declarations or covenants.