Community Association Presentation for Washington Secretary of State's Office

I will be leading an electronic presentation concerning community associations for the Washington Secretary of State's Office on June 15 at 10:00 a.m.  I will provide an overview of the legal issues that affect those associations, including the scope of the Washington Uniform Common Interest Ownership Act ("WUCIOA") and coronavirus-related concerns.

Washington Court of Appeals Prevents Covenant Enforcement Due to Delay

The Washington Court of Appeals recently decided in an unpublished opinion that the legal doctrine of laches prevented an owner of real property from obtaining relief based on a claim that the owner of neighboring property violated covenants governing both properties.  Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them. It is in effect neglect for an unreasonable length of time under circumstances permitting diligence to do what in law should have been done.  

The legal elements of laches are inexcusable delay and prejudice to the other party from such delay. The plaintiff in this case waited twenty years after his neighbor's home and barn were built before asserting that they violated protective covenants. The Court ruled that this delay and the resulting harm to his neighbor if his claim were allowed to prevail mandated dismissal.

Governor Amends COVID-19 Proclamation to Address Community Association Issues

On April 17, the Governor of Washington state amended his COVID-19 emergency proclamation to address several issues related to community associations.  This proclamation amendment first permits owners and directors in community associations to vote on association matters by mail, electronic mail, and proxy even if their associations' governing documents do not permit them to do so.  It next permits owners and directors in community associations to attend meetings by conference telephone and other types of similar communications equipment that allows all participants to hear each other at the same time even if their associations' governing documents do not permit them to do so.   It finally prohibits community associations from charging owners late fees and interest on delinquent assessments and from imposing fines on owners for violating their governing documents.  This proclamation amendment is currently scheduled to expire at 11:59 p.m. on August 1, but it may be extended beyond that date.    

If your association's governing documents do not specifically authorize voting by mail, electronic mail, and proxy and attending meetings by conference telephone and similar communications equipment, then you should consider taking this opportunity to schedule a meeting to vote on an amendment to those documents that contains such authorizations.

Washington Legislature Approves New Law Regarding Low-Water Landscaping

The Washington Legislature recently approved a new law regulating the ability of community associations and their governing documents to restrict low-water landscaping practices.  The law first states that an association's governing documents may not prohibit the installation of drought resistant landscaping or wildfire ignition resistant landscaping.  It next states that an association's governing documents may include reasonable rules regarding the placement and aesthetic appearance of such landscaping as long as those rules do not render the use of such landscaping unreasonably costly or otherwise effectively infeasible.  The new law finally states that an association may not sanction or impose a fine or assessment against an owner or resident for reducing or eliminating the watering of vegetation or lawns for the duration of a drought condition order issued by the department of ecology that is applicable to the property.  This new law takes effect on June 11, 2020.

How Will Coronavirus Affect Your Community Association?

The coronavirus pandemic is likely to have serious consequences for many Washington condominium and homeowners associations.  Those associations' financial, maintenance, enforcement, and meeting policies may be significantly impacted by this crisis.  Prudent boards will anticipate virus-related problems and prepare for them.

A large number of owners may soon lose a substantial amount of income in the near future due to severe illness, lengthy school closures, and fewer hours at their jobs.  If the economy slips into recession, then some owners will become unemployed for lengthy periods.  Those events are likely to result in more unpaid assessments in the short to medium term.  Association boards should consider temporary adjustments to their policies concerning payment plans for unpaid assessments (for example, smaller payments over longer terms) and referral of delinquent accounts to attorneys for collection.  Boards should also anticipate an increased need to incur attorney fees in order to pursue legal action against seriously delinquent accounts.  As a result, they should consider increasing the amount provided for legal expenses in the association's budget.  

Given the probable increase in delinquencies in the near future, boards should consider delaying non-urgent maintenance and repair work for at least the next several months.  This will give them an opportunity to evaluate the effect of the virus on their associations' finances and to reschedule projects and reallocate funds if necessary.  However, boards should also consider arranging for commonly used items and surfaces in their associations' common areas to be cleaned and disinfected more frequently and thoroughly over the next several months in order to reduce the number of transmissions that occur in those areas.  

The difficulties that many owners will soon face due to sickness, child care, and loss of income may result in more antisocial behavior and covenant violations over in the short to medium term as well.  This may necessitate the imposition of more fines and more referrals to the association's attorney for enforcement action. A community association board in Washington state is not legally permitted to fine an owner until it has adopted a fine schedule, distributed it to all owners, and given the owner notice and an opportunity to be heard.

Given the necessity for a period of social distancing, associations may find it more difficult to hold meetings due to lack of quorums. Boards should consider temporarily allowing owners and directors to attend meetings by telephone or video-conference and to vote by mail or e-mail. Boards should also consider cancelling social gatherings in common areas for at least the next several months.