[WSBARP] Fines by HOA - Liens

Tue Nov 7 15:18:42 PST 2017

OK, now here's Rob with another HOA (not condo) rant:

If we read RCW 64.38,020 (Association powers), it seems pretty clear what the Legislature thinks associations have the power to do. If it is not found within the enumerated powers, there are the catch-all provisions at the end, 

(12) Exercise any other powers conferred by the bylaws;

(13) Exercise all other powers that may be exercised in this state by the same type of corporation as the association; and

(14) Exercise any other powers necessary and proper for the governance and operation of the association.

All you have to do is amend the Bylaws to provide for lien rights and you have a trifecta - three statutes that say you can lien and foreclose liens for nonpayment.

Do my three statutes beat your Chiwawa and Meresse? 

Do Chiwawa and Meresse even think about what the statutes say? And were the statutes not written after the precedent cases that Chiwawa and Meresse say they are founded on? So, didn't the Legislature understand the law at the time of the statute, and write the statutes in full comprehension of those cases and in contradiction to them? Or does that rule only apply when the Court wants to get to a particular result?

At this point, the answer to the original question is, the HOA has no powers not specifically provided for in the Declaration of Restrictive Covenants, or whatever they are called. Of course, that is sort of contradictory to Chiwawa, headnote 18, where it says that you can amend covenants without unanimous approval if they are related to existing covenants, and isn't the collection of assessments by liening related to assessments? 

And a burden on whom? The liened owner, or the owners who have to pay more because they can't lien?

OK, I'm done. 

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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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Mary Stone
Sent: Tuesday, November 07, 2017 2:26 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Fines by HOA - Liens

I recently researched this and tried to argue for lien rights where there were no covenants and no provisions for payment of road maintenance.  The only case out there that I could cite was a Snohomish County trial court order (Mt. Index) that gave lien rights.  My trial judge said he didn’t have that authority to grant lien rights, but he did have authority to require everyone to pay for road maintenance based on Busby and Mt. Dallas.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Tuesday, November 7, 2017 11:24 AM
To: wsbar <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Fines by HOA - Liens

I thought it was well settled that if a HOA ‘s  CC and R’s did not provide for the ability to file liens for unpaid fines, that that is simply not available.  This is because there was no notice of this at the time the member purchased the lot.

We had a recent listserve entry that made me think that this isn’t well settled.?  and I have a HOA client who would love to file liens on unpaid fines.

what say you?

Josh

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734

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