[WSBARP] SOL and challenges to association actions

[Rob Wilson-Hoss]

The application of statutes of limitations to challenges to association
actions keeps coming up as I regularly have to deal with old amendments that
seem to very often have ignored the proper procedures when enacted. So I
finally decided to do the research, Here it is, please let me know if I am
missing something:

 

 

What about using the statute of limitations to support an association's
action? When can an association simply say, ok, it was not done properly,
but it was within our corporate powers, so it was voidable, not void, and
the statute of limitations has run so it's too late now to argue about it?

 

First, this will only apply if the association is sued. If the association
sues to collect assessments or remediate property or behavioral violations,
and the member makes a counterclaim that the exercise of the corporate
powers was defective and that the voidable action underlying the
association's claim is therefore invalid; then the association may not be
able to say, you can't challenge that because you are too late. Association
counsel will want to consider how to strategize around this. Make them sue
the association. 

 

If the association is sued and the statute of limitations can't be used as a
defense to a responsive claim,  the doctrine of ratification, Ebel v.
Fairwood Park, 136 Wash. App 987 (2007) and other decisions may rescue the
association's actions.  Or laches, or regular estoppel, or any other
equitable defense that applies. These do apply to respond to claims by
defendants. 

 

If the statute of limitations is in play, here are some of the rules:  

 

·       Statutes of limitations only apply as defenses to claims of a
Plaintiff, not as defenses to a Defendant's responsive claims.
Allis-Chalmers Corp. v. City of N. Bonneville, 113 Wash. 2d 108 (1989).

·       A corporation must act within its own authority. If an action is
beyond its corporate authority, it is void ab initio. Twisp v. Chelan, 16
Wash. 2d 264.

·       If an action is within its corporate authority but taken improperly,
it is voidable. It can be challenged, but the statute of limitations is an
affirmative defense. Keller v. Sixty-01 Assocs. of Apartment Owners, 127
Wash. App. 614

·       If an action is within its corporate authority, but taken
improperly, a party who/which benefits from the action cannot challenge it.
This is another affirmative defense. Twisp v. Chelan, 16 Wash. 2d 264;
Hartstene Pointe Maint. Ass'n v. Diehl, 95 Wash. App. 339

·       If a statute requires a procedure and says that an action that does
not follow that procedure is void, then it is void; this includes a broad
interpretation in Keller. The better discussion is in Bilanko v. Barclay
Court Owners Ass'n, 185 Wash. 2d 443: mere failure to follow statutory
process is not enough, there needs to be direct language in statute that
makes failure to follow void. This is another affirmative defense.   

·       If an action is fraudulent or seriously contrary to public policy
(or if it exceeds the legal authority of the association, see Twisp), then
it is also void and not void. Bilanko. This is another affirmative defense.


·       The recent unpublished Parker v. Pattison has dictum that is
seriously wrong on several of these doctrines. Parker Estates Homeowners
Ass'n v. Pattison, No. 47402-6-II, 2016 WL 7468226 (Wash. Ct. App. Dec. 28,
2016)

 

Rob

 

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

www.hossandwilson-hoss.com
 <mailto:rob at hctc.com> rob at hctc.com

 

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