Court of Appeals Decides that Property Owner Complied with Tree-related Duties

In early 2021, a windstorm with gusts reaching upwards of 75 miles per hour hit Spokane, causing widespread destruction. During the storm, a ponderosa pine tree located on a residential property snapped. The top of the tree landed on and damaged two vehicles on a neighboring property. A lawsuit ensued. The Washington Court of Appeals decided in a recent unpublished opinion that the owner of the property on which the tree was located was not negligent with regard to it. The Court summarized the governing law as follows:   

"A landowner is not under a duty to guarantee their trees will not harm persons or property on adjacent land when the trees are part of the natural landscape. Rather, a landowner is obliged to take corrective action toward their trees when on actual or constructive notice of defects ... A landowner is on notice when defects in their trees are 'readily observable.'"

The Court concluded that the record failed to raise a genuine issue of material fact as to whether the owner of the property on which the tree was located had actual or constructive notice of a defect in her trees. Without such notice, she had no duty to take corrective action.

Court Upholds Association's Decision to Refrain from Enforcing Covenant

In a recent unpublished Washington Court of Appeals opinion, a lot owner had sued his homeowners association and contended that it had a duty to take certain actions with regard to parking enforcement. The appellate court disagreed with that contention on several grounds, one of them being that the declaration of covenants states that the Association has the power to enforce it but is not required to do so. The court observed as follows: 

"When a homeowners’ association makes a discretionary decision in a procedurally valid manner, we must not substitute our judgment for that of the homeowners’ association unless there is fraud, dishonesty, or incompetence .... The supreme court noted that this rule was necessary to insulate homeowner associations from being subjected to lawsuits anytime a homeowner disagreed with a discretionary choice made by the Board."

If your community association board has questions about the nature and scope of its covenant enforcement powers and duties, then it should consider retaining a qualified attorney to provide clarity.

My Next Presentation for the Washington Secretary of State is on November 8!

My next free virtual presentation concerning current community association legal issues for the Washington Secretary of State will take place from 12:00 p.m. until 1:30 p.m. on Wednesday, November 8. This presentation will include information regarding new state laws applicable to such associations. If you want to attend, then you should contact Teresa Glidden at the Secretary of State's office at  teresa.glidden@sos.wa.gov.

Washington State Community Association Budget Season Is Here!

Washington State condominium and homeowners associations' annual and special budgets are legally required to contain certain information and to be ratified by their owners. Those associations must first provide each proposed budget to their owners and schedule a meeting to consider ratification of that budget. The proposed budget must include:

(a) The projected income to the association by category;

(b) The projected common expenses and those specially allocated expenses that are subject to being budgeted, both by category;

(c) The amount of the assessments per unit and the date the assessments are due;

(d) The current amount of regular assessments budgeted for contribution to the reserve account;

(e) A statement of whether the association has a reserve study that meets the requirements of RCW 64.90.550 and, if so, the extent to which the budget meets or deviates from the recommendations of that reserve study; and

(f) The current deficiency or surplus in reserve funding expressed on a per unit basis.

Other state laws (RCW 64.34 and 64.38) require the proposed budgets of the associations to which they apply to contain additional information as well. Each proposed budget is ratified unless a group of owners of units or lots to which a majority of the total voting power in the association is allocated rejects it at that meeting.

If your board has questions or concerns about the approval and ratification of the association’s budgets, then my office is here to help!

Washington Court of Appeals Upholds Condo Declaration's Exculpatory Clause

The Washington Court of Appeals recently ruled in an unpublished opinion that a condominium's declaration exculpated the condominium association from any liability arising out of an owner's claim that the association neglected to maintain a common element. It based that ruling on a common limitation of liability clause in the condominium's declaration that broadly exculpated the association from such claims except to the extent covered by the association's insurance. The Court summarized its reasoning as follows:

"As in Scott, the exculpation from liability from water from outside or from any parts of the buildings logically includes liability based on the Association's negligence. That the exception to the exculpation exists when the Association has insurance to cover the liability implies the clause was intended to exculpate the Association from liability for damages for its own negligence."

If your condominium or homeowners association board has questions or concerns about the association's liability for an owner's claim against it, then the board should consider contacting my office.