Has your condominium or HOA declaration been amended fifteen times? Are you tired of page after page of references to a declarant or developer that has been out of the picture (or out of business) for years, or even decades? Is your association’s declaration so old, poorly recorded or otherwise hard to read, that parts […]
Restrictive Covenants: The Impact on Washington Condo Owners
In 2017, the Washington Supreme Court issued a significant decision related to restrictive covenants affecting condominium units. It reaffirmed the importance of timely challenging of an amendment to condominium covenants, in particular for a restrictive covenant imposing a rental cap restriction. However, the Supreme Court also left unanswered some questions regarding the percentage approval necessary […]
What is the Guarantee in a Guaranteed Maximum Contract?
Associations facing repair projects are often given the option of entering into a guaranteed maximum contract or G-Max contract with their contractor. These contracts are common for repair projects, whether the repairs are required because of defects and damage or because the component is at the end of its useful life. The implication that a […]
Common Pitfalls in Dealing with Major Repairs
Recent experience as litigation and general counsel for numerous associations who are currently tackling significant repairs suggests a couple of common pitfalls. First, don’t skimp on the consultant. While some associations decide that using an engineer or architect to develop a scope of repair and oversee its implementation is too time consuming or an unnecessary […]
Loss Assessment Insurance
You live in a condominium association and happily (ok, probably not “happily”) pay your dues each month. Your board has diligent members and your association is well insured. What could go wrong? Well, lots can go wrong, unfortunately. Life is full of unexpected twists and turns. A slip and fall accident might find the association […]
Unpaid Assessments: Liens & Personal Obligations – Part II
Last week, we discussed how delinquencies affect owners and the lots or units they own. This week, we discuss the effect of bankruptcy, sales and foreclosures on the personal obligation or liens. Generally speaking, an owner’s bankruptcy affects the owner’s personal obligation to pay the amounts becoming due on or before the bankruptcy filing […]
Unpaid Assessments: Liens & Personal Obligations – Part I
Under state law in Washington and Oregon, Condominium and Homeowner Associations have the authority to adopt and amend budgets, and levy and collect assessments from owners for the common expenses. But it can be confusing what happens when an owner does not pay the assessment. This two-part article discusses the personal obligation of the owner […]
Dog Days of Summer
With the mercury hitting record highs this week, I look out my office window and dream of jumping into a nice cool pool. As a community association attorney, my brain automatically shifts from recreation to work mode. I recently helped a client update their community pool rules and thought this would be a good opportunity […]
Association Committees
Committees can be a productive tool for condominium and homeowners associations. Committees, such as budget committees or architectural control committees, can promote increased participation by owners, benefit from unique owner expertise, and help reduce the workload imposed on volunteer board members. However, to properly benefit from the use of committees, it is essential that they […]
Is a Loan Right for Your Community?
At a time when many condominiums are old enough to require major repairs or renovations, community associations can be overwhelmed by the cost. The word is definitely out that a community association loan may be a viable option for many communities. In contrast to a lump sum special assessment, the ability to pay a loan […]
Guiding Principles for Enforcement Hearings
Since our enforcement hearing presentation at WSCAI’s Made for Managers Day a couple of weeks ago, we have been getting a lot of feedback on the variety of procedures employed for community association enforcement hearings, generally with the question “is it okay to do it this way?” First, a big thanks to all of you […]
Summer is Prime Community Time
One of the primary objectives of a community association board of directors is to facilitate and encourage a sense of connection within their physical community. There are multiple ways a board can boost community, including using committees comprised of homeowners, utilizing a robust communication system that may include a website or monthly newsletter that keeps […]
Consider the Source
The internet can be a wonderful resource but BEWARE: Not everything you read on the internet is true or accurate. It is also not a substitute for professional advice. Sometimes, bad internet “advice” is easy to spot. For example, hopefully none of us will fall for headlines like: “How spending $162,301.42 on Clothes Made Me […]
Online Harassment and Risk of Liability Under Fair Housing Laws
My colleagues and I have blogged about the importance of recognizing requests for reasonable accommodations/modifications, carefully and thoughtfully considering them, and properly responding in a timely manner. We like to think our posts on this topic have helped a few association boards make better decisions, but if the case discussed below is any indication, more […]
Washington Court of Appeals Reverses Trial Court’s Partition of Common Area
The Washington Court of Appeals ruled in an unpublished opinion last month that partition of a common area created by the deeds of four adjacent properties was not a remedy available to the trial court when the property owners could not agree about the use or maintenance of that common area. Read the article……………
Pre-Existing Conditions
It is difficult to turn on the news or open a newspaper (do people still do that?) without hearing a discussion of pre-existing conditions. The discussion relates to replacement of the Affordable Care Act (ACA). I am fortunate that employer-provided health insurance isn’t impacted by the ACA, as my affinity for burritos could actually qualify […]
Here Comes the Sun
In preparation for writing this week’s blog post, I googled songs about the sun. Dozens of cheery, happy songs immediately sprung from the internet. Out of curiosity, I also googled songs about rain. A few select, dreary, and depressing songs popped up. I decided on Here Comes the Sun by the Beatles. The reason: we […]
Election Got’cha! (WA)
This is the time of the year when many community associations hold board member elections. The process is easy, right? The association identifies the number of open positions, solicits nominations, sends out a meeting notice with candidate information and proxies in accordance with the governing documents (usually bylaws), and conducts the meeting following protocols outlined […]
Discover the Truth About Your Contractor (WA, OR)
A recent newspaper article warned homeowners of an inspector who had been fined more than $80,000 by Oregon’s Construction Contractors Board (or “CCB”) for performing illegitimate inspections and using the license number of an inspector who had the same first and last name. It is a reminder that licensure comes with important consumer protections, including […]
You Won the Election, Now What?
Congratulations! You threw your hat in the ring, ran a vigorous issues-based campaign promising to shake up the establishment, and ultimately won a seat on your association’s board of directors. Once the champagne stops flowing, consider the following tips to get your term off to a productive start. Read the article…………..
Galvanized Pipe Condition Assessment
Community Engineering Services, PLLC was retained by a home owners association representatives to support a Galvanized Pipe Condition Assessment for a high-rise condominium in the Pacific Northwest region of the United States. The results published here were presented to a quorum of the HOA Board in November 2012. Read the article……………
Court of Appeals Upholds Homeowners Association’s Application of Bylaws
The Washington Court of Appeals recently upheld a homeowners association’s interpretation and application of its bylaws in a published opinion. Members of the association challenged its authority to impose membership fees and liens because they claimed that its board of directors was improperly constituted. Read the article…………..
Limited Common Elements
Are we dealing with part of a unit, the common elements or a limited common element? This is often the first question when analyzing maintenance, repair and replacement responsibilities in a condominium. That question also often relates to: Who pays? Today, let’s focus just on identifying limited common elements, which can be a little tricky […]
Many Shades of Grey
One of the main reasons I love practicing common interest community law is its newness. Compare condominium law to, say, contract law, which can be linked thousands of years all the way back to the Babylonian Code of Hammurabi (est. 1792-95 BC). Or what about Normative or English Common Law, that also trace back centuries? […]
Invalid Board Does Not Have Authority to Bring Lawsuit on Association’s Behalf
The Appeals Court of Illinois recently held that an association’s board of directors does not have authority to bring a lawsuit on behalf of the association if it is not formed properly according to the condominium’s governing documents and the law. While this case is not binding in Washington, it may indicate how Washington courts […]
‘Tis the Season of the Annual Meeting
Reaching the end of the contentious and hotly contested national election was no doubt a relief for many of us. However, for our community association clients, there is no rest for the weary because late winter and spring is association annual meeting season! Read the article………..
Court Defers to Association’s Interpretation of its Bylaws (WA)
The Washington Court of Appeals recently held that an association’s board of directors was validly constituted and properly passed bylaw amendments, so the board (and the management company as the board’s agent) had the authority to charge and collect fines and fees. Parker Estates Homeowners Ass’n v. Pattison, No. 47402-6-II, 2016 WL 7468226, at *1 […]
Sure, you can read it but this is our STANDARD LANGUAGE
We have all seen onerous and unfair language in contracts, waivers, releases, invoices, disclaimers, disclosures, notices. Sometimes it is in the dreaded “fine print.” Sometimes it is in large bolded, underlined print. When one party challenges such language, we often hear the response: This is “industry standard.” Don’t agree to proposed language based on an […]
Possession after Judicial Foreclosure (WA)
Recently, the Division 1 Court of Appeals of Washington issued its opinion in the case of Viewcrest Condominium Association v. Robertson, 2016 WL 7470025 (December 27, 2016). The decision by the Court in Viewcrest will need to be considered when evaluating collection of delinquent condominium assessments in Washington. In Viewcrest, the condo association utilized judicial […]
Washington Court of Appeals Issues Redemption Act Opinion
The Washington Court of Appeals recently issued a published opinion regarding the application of the Washington Redemption Act (RCW 6.23). The Court’s opinion holds that “a condominium owner occupying the condominium as a residence at the time of a judicial foreclosure of a condominium lien has the right to possession during the redemption period, with […]
Washington Court of Appeals Rules in Favor of Homeowners Association
The Washington Court of Appeals ruled in favor of a Camas homeowners association’s actions concerning board membership and delinquent assessments in a recent unpublished opinion. Read the article…………..
Dealing With Ice is Anything But Neat
Those of us in the Northwest were recently hit with the first round of winter snowstorms. My children are avid weather watchers (in hopes of future school closures), so I understand that we are in store for several more storms in the coming months. Winter snow and ice inevitably result in a host of insurance […]
Comply with Fire Alarm Requirements! (WA)
It’s cold outside, so thoughts turn to fire. As Q13 reported last month, Snohomish County fire officials recently confirmed that fifteen local condominium and apartment buildings are not updated with legally required fire alarms. The compliance crackdown came about a year after a fire killed a person in their Everett apartment on New Year’s Eve. […]
Tree Trouble – Part II, Self-Help
In part one of our three-part series on Tree Trouble, my colleague David Silver wrote about Timber Trespass. In this post, I’m going to discuss self-help. Self-help is the legal term that describes “taking the law into your own hands”—literally. In this context, it would include a property owner getting out their pruning shears or […]
Tree Trouble – Part I, Timber Trespass
One aspect of real property law that I find interesting is how some of the nastiest legal disputes are between neighboring property owners. On one hand, it would seem incumbent upon neighbors to be friendly and cooperative to one another because they are forced to interact regularly. On the other hand, the likelihood, or at […]
Rigged (HOA!) Elections
A few months ago, the Chairman and Secretary of a Pennsylvania community association were convicted by a jury of election fraud. The directors schemed to fill out ballots to stack the deck in upcoming board elections. An attorney in Las Vegas plead guilty to a similar charges a few years back. He was part of […]
I Don’t Think We’re in Kansas Anymore
Kansas, of course, is in the heart of Tornado Alley and home to the most famous tornado of them all: the one that swept Dorothy into the Land of Oz. Recently, however, Oregon and Washington felt the effects of multiple tornadoes. Two tornadoes touched down in Oregon in October. Tornado warnings were also issued for […]
Washington Court of Appeals Affirms Order to Trim Hedge Row and Restore View
A Mercer Island homeowner sued his downhill neighbors for specific performance of a covenant that requires landscaping to be maintained at a height no greater than the nearest roof peak. His neighbors responded that a hedge row on their property could grow as tall as the roof peak of the plaintiff’s home because it was […]
What Did That Say?? Political Signs & Free Speech (WA)
It is often said that this U.S. presidential election has been the most polarizing election in modern times, if not all time. Because of the strong opinions on every side, more and more community associations are having to address not just the mere existence of these signs, but also the content. With the presidential and […]
Court of Appeals Enforces Covenant Restricting Height of Trees and Hedges
The Washington Court of Appeals recently issued an unpublished opinion that a row of trees violated a covenant restricting “hedges” to a height of six feet or less. The parties own property in a neighborhood on Whidbey Island that is built on a slope and that provides views of the Puget Sound and the Olympic […]
Neutrality
Association boards deal with a variety of unit owner behaviors and personalities. Some are positive, some are negative, and some are downright inexplicable. This can lead to both real and perceived bias. Regardless of the behavior or how much the board likes or dislikes an owner or their actions, the Board has an obligation to […]
New FHA Rules to Create New Association Duties
On September 13, HUD released new rules for the Fair Housing Act (FHA) that will impact community associations. Under these new rules, which take effect on October 14, 2016, a community association could face liability for the discriminatory acts of residents who harass or create a hostile environment for other residents. As our regular blog […]
The Business Judgment Rule
Community Association board members frequently ask, “What is the standard we’re held to when we vote and make decisions?” The standard of conduct in Oregon and Washington is colloquially known as the “Business Judgment Rule.” Application of the Business Judgment Rule comes into play in nearly all board decision making from deciding how far to […]
Court Rejects Condominium Owner’s Attempt to Invalidate Assessments (WA)
In a recent unpublished opinion, the Washington Court of Appeals affirmed the trial court’s summary judgment denial of a condominium owner’s legal challenges to the assessments charged to his unit. Read the article……………
Associations Not Required to Disclose Privileged Information
The Maryland Court of Special Appeals held that the Maryland Condominium Act did not require disclosure of information related to legal advice or attorney work product (privileged information) to owners. Although this case was decided in Maryland, and it is not binding in Washington, it could indicate how Washington courts would decide a similar issue […]
Is Short-Term Leasing a “Commercial Use”?
In Houston v. Wilson Mesa Ranch Homeowners Association, Inc., the Colorado Court of Appeals held that short-term rentals did not violate a covenant prohibiting commercial use of a unit. However, this ruling did not indicate that all restrictions on short-term rentals are unenforceable. Although this case was decided in Colorado, and it is not binding […]
Business Judgment Rules does not Apply to Unauthorized Acts
The South Carolina Supreme Court held that association board decisions must be evaluated individually to see if the business judgment rule applied, and the business judgment rule did not apply when the board acted beyond its authority. Although this case was decided in South Carolina, it could be an indication of how a Washington court […]
The Blame Game
Most of us can be quick to point fingers. It might be a fender-bender, an overcooked hamburger, or losing the Superbowl on the last play of the game – I know my first instinct is to figure out who is to blame for my suffering. In life, this instinct may be correct most of the […]
The Good, the Bad, and the Ugly of the Insurance Discovery Rule
I have a number of “First Party Insurance” claims sitting on my desk (e.g. an Association pursuing its own carrier for discovered property damage). Many of these involve the “discovery rule.” Having dealt with this rule on a number of occasions, I’ve discovered the good, the bad, and the ugly of this rule. Read […]
Just Dues
One of the unavoidable realities of being an owner at a condominium association is the obligation to pay membership dues. Typically, a condominium’s board of directors will levy an annual assessment based on a budget that has been ratified by the association’s members. The annual expenses will then be assessed to owners and divided according […]