[WSBARP] Imputed Knowledge of HOA Violation
James L. Strichartz
jim at condo-lawyers.com
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).
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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
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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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