[WSBARP] HOA Fines and Board Actions

Tue Sep 9 15:04:43 PDT 2014

Rob, thank you for pointing out the Wilkinson case to me.  It is indeed
the companion case in the HOA arena to the Filmore case that the condo
people are talking about.  The Filmore case even cites the Wilkinson case
making an appeal of the Filmore case unlikely or, at least, unproductive.
The Wilkinson case is even more problematic.  Wilkinson says that if the
new restriction/covenant is unrelated to an existing restriction/covenant
(and there is no authorization to adopt new restrictions) then no new
restriction/covenant is valid unless it passes unanimously.    Ouch.  That
is a very high bar to jump.  This particular HOA has over 200 members and
a large number are absentee. 

My conclusion is that because this HOA’ s CC&Rs don’t even mention
clotheslines and there is no reservation of rights to add restrictions,
they will almost never be able to control clotheslines in the front yards
(even if they got 99% member approval to amend the CC&Rs.)  

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, September 9, 2014 1:22 PM
To: wsbarp at lists.wsbarppt.com
Subject: RE: [WSBARP] HOA Fines and Board Actions

This is exactly the quagmire that is Wilkinson v. Chewawa. Forget about
the ruling that VRBOs are not commercial, but are residential uses, and
the tortured "proof" that rentals are allowed under the declarations in
that case. The real problem is that "a majority of Chiwawa homeowners
cannot force a new restriction on a minority of unsuspecting Chiwawa
homeowners unrelated to any existing covenant." The majority plainly rules
that new restrictions unrelated to existing ones are only allowable,
absent 100% vote, where the covenants specifically allow the creation of
new restrictions and

the new restrictions are consistent with the general plan of the
development. 

The difference between an existing covenant, which can be changed, and a
new covenant, which can't be added absent a covenant provision allowing
new covenants, is relatedness. 

Remember, the Chiwawa covenants allowed for amendments that change them in
whole or in part. And that does not include anything not related to a
current covenant as a matter of law.

The dissents would prefer a rule that allows changes to the overall
covenants by adding covenants, in the absence of a specific covenant
provision allowing new covenants, when the added covenant is consistent
with the general plan of the development. 

So, what do your client's covenants say, exactly? Do they allow for the
addition of new covenants? If not, do they mention, for example,
clotheslines? Can it, as well as other behaviors and property conditions,
fall under the noxious offensive nuisance rules? If not, then your client
is on thin ice if it restricts clotheslines, by covenant amendment or even
worse, by rule.

And you are absolutely correct: this is all an overlay on top of the
statutory grant of powers to HOAs in 24.03.  They now mean nothing unless
the powers are already in the covenants; which is directly opposite of
what the Legislature said: unless otherwise provided by the governing
documents. 

Finally, notice the anger and hostility in the opinions.  The language is
very aggressive and I don't know why.   

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, September 09, 2014 12:20 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] HOA Fines and Board Actions

Listmates:  I am working with a HOA formed in the mid-1990s under RCW
24.03 (so fairly old documents).  I guess I am looking for confirmation of
my research and analysis.

1.       Fines After the Fact?  The Articles, Bylaws, and CC&Rs all state
the  purpose of the HOA is to enforce the CC&Rs and specifically allows
the setting of assessments/dues for annual budget type of things but does
not address the setting of fines for violations of the CC&Rs .  The CC&Rs
say that the HOA has the “authority and obligation of enforcing the terms
of this Declaration”  by “proceedings in equity or at law.”  While a
person could argue that this means that an action in “equity or at law” is
the sole method of enforcing the CC&Rs, another person could argue that
this doesn’t state that an action in equity or at law is the sole method
of enforcement.  Fortunately, RCW 64.38.020 says: “Unless otherwise
provided in the governing documents, an association may:…… (11) Impose and
collect charges for late payments of assessments and, after notice and an
opportunity to be heard by the board of directors or by the representative
designated by the board of directors and in accordance with the procedures
as provided in the bylaws or rules and regulations adopted by the board of
directors, levy reasonable fines in accordance with a previously
established schedule adopted by the board of directors and furnished to
the owners for violation of the bylaws, rules, and regulations of the
association;….” (Casemaker reveals that few reported cases address RCW
64.38.020)  Also, fortunately, the Bylaws have a provision that allows the
board “to make such rules and regulations as may be considered necessary
to ensure compliance” with the CC&Rs.  

It seems to me that because my governing documents do not provide
otherwise, the HOA can adopt a schedule of “reasonable” fines, give notice
to all members of the HOA and then be able to start fining for violations
of specific items set forth in the CC&Rs.  Agree or disagree anyone?

2.       Additional Restrictions not Set Forth in CC&Rs?  Ok, the Articles
say the HOA is “to do all and everything necessary , suitable, and proper
for the accomplishment of the purposes of the HOA and that the HOA has all
of the general powers as a non-profit under WA law.  The Articles also
state that the power to amend the Bylaws “vest in the membership.”  A
provision of the CC&Rs states that a change in the “use of the property”
may be approved only by the majority of the voting power of the
membership.  Yet another provision of the CC&Rs state there shall be “no
noxious, illegal, or offensive use of the property.” 

OK, can the HOA impose fines by Rule and Regulation on something that is
not prohibited in the CC&Rs  ?  In other words, where is the line where
the Rules and Regulations exceed the authority of the CC&Rs?   Say that
members are starting to park derelict vehicles on their property, or put
up, gasp, clothes lines in their front yards.  If the CC&Rs don’t mention
clothes lines then is the Board prohibited from adopting fines for clothes
lines in the front yard unless it goes to the membership first and changes
the Bylaws or the CC&Rs because the restriction in using clothes lines is
a new restriction in the “use” of the property?

What if a member is blasting his stereo at night?  Is this noxious or
offensive “use” of the property to the extent that the HOA can fine the
member?  Like “beauty,” it seems to me that “offensive use” is in the eye
of the beholder.  At what point does behavior (like a front yard clothes
line that may or may not offend a neighbor) cross over into the realm of
“noxious, illegal, or offensive use of the property”?  My mid-1990s
governing documents are not going to cover all things that may come along
that someone deems to be offensive.  Any cases out there providing a
bright line?  

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Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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