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The Washington Court of Appeals recently ruled in an unpublished opinion that the trial court erred when they decided on summary judgment that a condominium association did not owe a duty of care to its tenant and that the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.