[WSBARP] Imputed Knowledge of HOA Violation

[Rob Wilson-Hoss]

First, look to see if there is a severance clause - failure to enforce in
one instance does not waive enforcement in other instances or same
circumstances. Could be on plat, in covenants, bylaws, anywhere. There is a
case right on point but I don't have time to find it now.

 

Second, both nonprofit corp statute and hoa statute say association acts
through the board, not individual board members. No right to rely = no
estoppel. Governing documents probably all say the same thing as well.
Basic estoppel research. 

 

Waiver has to be the intentional waiver of a known right. One board member
can't waive for entire board.  Basic waiver research. 

 

Violation of rule is a status offense. If board operates on a complaint
system, if no complaints, nothing ever happens; but if a complaint does
occur, then status is in violation. 

 

Defenses to enforcement are found in several cases but collected probably
best in the Real Property Deskbook. 

 

Rob

 

 

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-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, March 17, 2015 3:31 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Imputed Knowledge of HOA Violation

 

Listmates: I hope someone can point me in the right direction because my
research has been coming up empty.   Say:

 

1.       HOA (RCW Chapter 64.38)  CC&Rs prohibit clotheslines.  

2.       A member of the HOA bd of directors helps neighbor install a
clothesline five years ago in backyard.  

3.       Bd. member is now off of the Bd. but has a fight with neighbor AND
turns neighbor in to BD and lodges a complaint to the BD citing the
neighbor’s clothesline. 

4.       HOA sends violating neighbor a letter of violation and opportunity
to be heard in accordance with a duly approved schedule of increasing fines.

5.       Neighbor has now lawyered up and shows a willingness to fight HOA
over the clothesline issue.  Assume that the other Bd. members were never
aware of the clothesline but the bd. of directors wants to prohibit the
clothesline now that they are aware of the presence of the clothesline. 

 

For now, I am focusing on one issue:  Is knowledge of the clothesline by a
single bd. Member (who did not report his activities to the board but was
actually in charge of CC&RS enforcement for the HOA) imputed to be knowledge
by the entire board?  Violating neighbor is arguing laches, waive and
estoppel.  None of the other board members were aware of the clothesline. 

 

Any case law out there?

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