[WSBARP] Imputed Knowledge of HOA Violation

Tue Mar 17 16:16:58 PDT 2015

I believe that the case that Rob is referring to is Mountain Park Homeowners Ass'n, Inc. v Tydings, 125 Wash.2d 337, 883 P.2d 1383 (Wash. 1994).

Please check out our new website, now live at www.condo-lawyers.com.

Jim Strichartz

Attorney

Law Offices of James L. Strichartz

201 Queen Anne Avenue North, Suite 400

Seattle, WA 98109-4824

jim at condo-lawyers.com <mailto://jim@condo-lawyers.com/> 

http://www.condo-lawyers.com <http://www.condo-lawyers.com/>  

http://www.linkedin.com/in/condolawyer <http://www.linkedin.com/in/condolawyer> 

tel:   206-388-0600

fax:  206-286-2666

Providing Tools for Successful Communities

This message is intended only for the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you are not the intended recipient, or the agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited, and you are requested to please notify us immediately by telephone, and return the original message to us at the above address. Opinions, conclusions and other information in this message that do not relate to the official business of this firm shall be understood as neither given nor endorsed by it. Although this message and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free, and no responsibility is accepted by this firm for any loss or damage in any way from its use.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, March 17, 2015 4:03 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Imputed Knowledge of HOA Violation

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

This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited.  If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments.  Thank you.

This office does debt collection and this e-mail may be an attempt to collect a debt, Any information obtained will be used for that purpose.  To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.

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?

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150317/9e551380/attachment.html>