[WSBARP] new case HOA statute

Wed Mar 9 15:07:31 PST 2016

Rob,

I am doing well, thank you.  I hope that you are too.  There are plenty of townhouse developments in the Puget Sound area where the declarant established mutually binding and benefiting covenants, but intentionally did not establish an association, leaving it to the individual townhouse owners to enforce the covenants.  Do I think that this is a good idea?  NO.  Do I think that the lack of an association makes the obligations under the covenants voluntary?  NO.  Do I think that a court should rewrite the covenants to provide for an association when the developer, thinking that associations are potentially abusive, intended to establish a mechanism that did not create one?  NO.

I think that the law is clear that there buyers need to buy into some collective legal entity at the beginning.  That intent could be evidenced by as little as a reference to there being a homeowners association on the face of the plat even though one was not incorporated or organized, as in Ebel.  If the covenants state that the lot owners will be members of an unincorporated association and empower that entity to enforce the covenants, I think that is enough to get you under RCW Chapter 64,38.  I think that "other legal entity" was intended to encompass limited liability companies, partnerships, and other legal entities that might arise in the future.

My final observation is that it is not enough to own residential real property within the jurisdiction of the association.  The requirement is that each such owner be a member of the association.  Thus my observations about mandatory membership.  In the instant case, there was nothing in the original governing documents to compel Halme's membership in the association, so it was not a homeowners association.

Best regards,

Jim

Jim Strichartz

Attorney

Fellow, College of Community Association Lawyers

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/>  

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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: Wednesday, March 09, 2016 2:02 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] new case HOA statute

Hi, Jim, how are you doing?  Thanks for the response.  I would agree with you, but for the actual language of the statute, which says what a HOA is. And it does not refer to anything in the governing documents, except the obligation to pay because of (at the minimum) ownership. So, when the statute says a homeowners association, 

means a corporation, unincorporated association, or other legal entity, each member of which is an owner of residential real property located within the association's jurisdiction, as described in the governing documents, and by virtue of membership or ownership of property is obligated to pay real property taxes, insurance premiums, maintenance costs, or for improvement of real property other than that which is owned by the member. "Homeowners' association" does not mean an association created under chapter 64.32 or 64.34 RCW,

the tests are spelled out, and if an "association" meets those tests, it is an HOA:

·       corporation, unincorporated association or other legal entity, and we already know that "unincorporated association" is as clear as mud, but nothing about this requires reference in covenants;

·       each member owns residential real property located within the association's jurisdiction;

·       jurisdiction is as described in the governing documents (and if the association had to be described in the governing documents, why not also say that, when it already says jurisdiction as described in the governing documents, so the Legislature knows how to say that);

·       by virtue of membership in the association or ownership of the property (again, nothing about covenants specifying an association);

·       is obligated to pay something (again, clarity goes missing).

I understand that the statute has always been difficult in many ways, and where it came from, but when it defines homeowners' associations, and does it in this way, I don't see that the recorded restrictions or other covenants have to specify an association of any particular sort, or any association at all. It's just not in the definition, regardless of whether it should be or not.

Under this statute, if I file a declaration of covenants and restrictions, and cover the elements required in the statute, I don't think I also have to describe the association. Is the result messy? Certainly. Would the opposite result that you argue for be worse for small associations that aren't called out in the covenants, but need a way to administer maintenance of facilities, setting assessments and collections? Certainly. Otherwise, what do they do? Maintenance and payment are voluntary, even though the covenants say they are mandatory? Individual members sue each other for the general obligation to pay for maintenance of roads that people use, in the absence of recorded enforcement tools?

Hey, I could be wrong, but I am sort of used to reading statutes, and sometimes I am actually right about them. This one seems to say what it says, to me. 

This is apart from the actual result in Walsh v. Halme, which is a whole other question. My objection is to how they got there; the larger objection is that they just don't seem to take HOA cases very seriously, Exhibit A being the discussion about super unincorporated associations. 

I apologize for boring everyone with this; what it all really illustrates is the immutable truth that no association is bulletproof from some sort of attack by disgruntled members who are bent on deconstructing an association or what it has done, based on the statutory scheme and whatever nonprofit statute may apply (or Robert's Rules of Order - don't get me started on those). 

Jim is absolutely right, the HOA act needs amending. In many ways. 

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 James L. Strichartz
Sent: Wednesday, March 09, 2016 12:01 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] new case HOA statute

Rob,

I must respectfully disagree with you.  I think that the decision was correct.  Unless the governing documents set up a mandatory membership organization ab initio I think that all you have is a covenant running with the land that is enforceable by any of the individual lot owners.  I do not think that you can bootstrap your way into such an entity after the fact, particularly when the covenant does not set up a method for amendment with less than 100%.  

RCW 64,38 was not a well considered piece of legislation.  It was cobbled together by Ralph Munro in response to all of the complaints that the Secretary of State's office was getting from disgruntled homeowners.  It was never reviewed by the Bar or the WCA Task Force.  It clearly needs some amendments since WCIOA appears to be a dead issue in this State.

Jim

Jim Strichartz

Attorney

Fellow, College of Community Association Lawyers

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: Wednesday, March 09, 2016 11:32 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] new case HOA statute

Thanks, Eric. There are problems with the position that governing documents have to specify or refer to an association. First, as to current members and new members, as soon as they participate, vote, pay assessments, and so on, then they will ratify. But this leaves a mess, because some will not have ratified, in theory. So, some in, some out.

Then, you have the problem of unjust enrichment, see the end of Lake Limerick v. Hunt, 120 Wash App 246. Everyone has to pay. If everyone has to pay, then how do you administer the payments (or the work) without an association, some mechanism to take actions?

As to what an unincorporated association is, the Supreme Court in Riss v. Angel spent a bunch of time talking around that issue, and the result is sort of like a partnership, for the purposes of that decision. Of course, there, there were documents.  

I just don't think courts take HOA cases seriously, and I am not the only one. Walsh v. Halme can't actually get to where they went - something more than just an unincorporated association. That's just plain invented by the court and of no use to practitioners. 

I agree, the issue for the HOA statute is what an unincorporated association is, or at least, that's one of the issues. I disagree that groups that work together to enforce a one-page set of covenants have, commonly, bylaws and other operating rules. Many do, but  I know of a great many that do not, including in particular small road maintenance and water associations. And again, I disagree that governing documents have to specify an association; the definition in the statute does not make that a requirement. Just that they have to pay. That's the point of that statute - to avoid the need to have the association provided for in the governing documents. 

Thanks for the reference to 1.16.080. Also look at CR 23.2 and the cases construing it. One of the comments refers to the lack of any definition of unincorporated association, for class action purposes. At least that's consistent....

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 Eric Nelsen
Sent: Wednesday, March 09, 2016 10:46 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] new case HOA statute

Rob, if you're ready to write the Bar Bulletin article on HOAs and covenants, I promise I'll read it!

I just read Walsh v. Halme and I think the "what is an association" section is a bit, well, inartful. But then, so is the statute, since the legislature clearly didn't think too hard about what constitutes a legal entity and what doesn't, before writing something like "a corporation, unincorporated association, or other legal entity." Which is kind of like saying, "a table, a fruitcake, or other item of furniture." But then, see RCW 1.16.080 <http://app.leg.wa.gov/RCW/default.aspx?cite=1.16&full=true#1.16.080> , which says that "unincorporated association" in a statute can also include LLCs. Go figure--so an LLC can be a fruitcake for purposes of statutory construction.

Regardless of the HOA statute, I think the case comes down to: What does it take to form an unincorporated association? I think that your example of long-established groups of people working to collectively enforce a one-line covenant can still qualify as an unincorporated association, because I highly doubt that such a group does not have a set of bylaws and rules for elections of officers, etc. such that those are the formative documents for the Association, not the one-line covenant that the Association enforces. It is just in the nature of the beast - any group of more than three people that tries to organize collectively ends up establishing a set of governance rules in order to prevent the chaos of total democracy, and get everyone's buy-in that decisions can be made by majority rather than unanimity. And I don't think the governing documents have to be recorded; they just have to exist.

I think the problem in Walsh v. Halme is not that Walsh et al. didn't form an Association--they did. But they only did it for themselves, for their own properties, and because Halme didn't participate and didn't consent, he is not a member of the Association and he and his property are not subject to its jurisdiction.  The other term I see in case law for "unincorporated associations" is "voluntary associations," which I think makes the point. One can voluntarily join a group, or voluntarily purchase a property under a covenant that says ownership of the property constitutes membership in a group, but the point is that it's voluntary.

By the way, I do think that HOAs have questionable authority when formed independent of recorded covenants--that is, the covenant being enforced does not impose membership in an association for the burdened/benefitted properties. If membership in the HOA does not travel with the land, then on any transfer the new owner can elect not to join the HOA. But that doesn't mean the covenant is unenforceable; it just means that a non-consenting party will have to be sued for a covenant violation, and the court will determine for itself whether the covenant has been violated, rather than reviewing the HOA's determination that the covenant was violated.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, March 08, 2016 11:40 AM
To: 'WSBA Real Property Listserv'
Subject: [WSBARP] new case HOA statute

Interesting new published Div. II case about what a HOA is, Walsh v. Halme, out today. The statute at issue is 64.38.005(11), which defines homeowners' associations:

RCW 64.38.010(11) defines a "homeowners' association" as a corporation, unincorporated association, or other legal entity, each member of which is an owner of residential real property located within the association's jurisdiction, as described in the governing documents, and by virtue of membership or ownership of property is obligated to pay real property taxes, insurance premiums, maintenance costs, or for improvement of real property other than that which is owned by the member.

and the precise point is, what means the first part of this - "a corporation, unincorporated association, or other legal entity?" Some questionable analysis leads to the conclusion that the recorded documents must refer to some sort of entity other than the owners themselves, that is something more than your run-of-the-mill unincorporated association:  

The HAA does not define "unincorporated association" or "legal entity," and no Washington case addresses the meaning of these terms in the homeowners' association context. Use of the word "other" before "legal entity" suggests that "unincorporated association" as used in RCW 64.38.010(11) must be a "legal entity." However, unincorporated associations generally are not legal entities. Newport Yacht Basin Ass'n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 74, 277 P.3d 18 (2012). Therefore, RCW 64.38.010(11) seems to require something more than a "typical" unincorporated association.

According to the court, when the statute says "unincorporated association," that is modified by "other legal entity," so the governing documents actually have to refer to something more than a typical unincorporated association, whatever that is. Age has its privileges; mine includes the privilege to say, no, that is not what the Legislature meant, and this is statutory interpretation of the most outcome-based sort. If the court were right, and "other legal entity" modified unincorporated association, then the only unincorporated associations that would count would be legal entities, which by definintion they are not. Oops. The court no doubt recognized this when it said that the statute "seems to require something more than a 'typical' association." So it went ahead and helped the Legislature out by providing its own rule.   

At any rate, the analysis then goes on to a discussion of what a typical unincorporated association is; it never gets to a discussion of what something more than a typical unincorporated association might be. 

Regardless, the result is that any HOA is at risk of challenge if its governing documents do not refer in some unspecified way to some sort of unspecified category of association of members. And that includes a whole lot (at least hundreds if not thousands) of very long-established and successful HOAs with that one-page set of minimal restrictive covenants that many were using in the 1960s; you know, the ones that include, 

No noxious or offensive activity shall be carried on upon said Tract or any part thereof, nor shall anything be done or maintained thereon which may be or become an annoyance or nuisance to the neighborhood.

Look, this is a serious issue and always has been, since the HOAA was adopted. Does it really apply all of the HOAA rules to small water or road maintenance associations? But the answer to the issue, politically, is to find a way to amend the statute to aim the HOAA rules to actual HOAs and not impose a bunch of silly requirements or powers on small associations that don't have or want rules about structure or behavior limitations. Here, according to this court, the answer is to interpret the statute to require that the governing documents include some reference to something more than a typical unincorporated association. 

Right now, this is simply a statutory interpretation issue - what does "unincorporated association" mean in this context?  

As for me, I don't think "other legal entity" defines or limits "unincorporated association," citing to Homer Simpson ("duh") (what did you want the Legislature to say, "unincorporated association, or other entity that has some legal status in addition to unincorporated and incorporated associations?") (and how can "other legal entity" apply to an unincorporated association that is by definition not a legal entity?); and I think this term, "unincorporated association," is meant to include an association of people. If we read the dictionary definitions of "association" in Google we can find one to suit every need and taste, including, "a connection or relationship between things or people," and a"group of persons banded together for a specific purpose." Road maintenance agreements and water agreements qualify under these definitions.

Finally, if anyone thinks that this opens the door to water or road maintenance associations starting to control the color palette for front doors, please remember the limitations of Wilkinson v. Chiwawa: is it already a covenant? (can't add new ones unless the old ones say you can specifically); can't add additional burdens; must be consistent with the general scheme of the development. Etc.

Your obedient servant,

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.

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