[WSBARP] Cutting Off Water OK?

Thu Apr 25 11:09:00 PDT 2019

I agree with my colleagues who say it’s a bad idea notwithstanding the HOA Dec and Bylaws. Cutting off water is different than prohibiting use of recreation facilities and amenities or even parking. Having no water is a health and safety issue. I can see a court easily carving out an exception (if needed) and making the HOA not only look bad, but suffer financially. 

Condo Commando’s provide a plethora of business to litigators.

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Rob Wilson-Hoss
Sent: Thursday, April 25, 2019 10:24 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Cutting Off Water OK?

This is a very frequent question from association boards. Their governing documents need to be reviewed carefully, as the language varies. Primarily this includes covenants, articles, and bylaws. Sometimes they are specific on this point, most often not. Many times there is language that is more general, around common properties only being available to members in good standing, or some such wording.

Water systems are common properties, usually. Members in good standing are those, usually, with assessments paid, and perhaps also no current covenant violations. Again, the specific language needs to be consulted.

Any water utility, or any utility at all, can stop delivery of service for nonpayment, if it follows whatever process applies. Typically, HOAs and the like are not subject to the UTC regulations, by the way. 

Associations want payment. Often Boards see this as a hammer to enforce payment  of not only amounts due specifically for water (and "water" means infrastructure costs spread out over the entire membership to ensure availability of the system, base rate, and usage rates over the base rate, at the least); but they also want to shut off water for nonpayment of other assessments, fines, and so on. This is cheaper and more effective than litigation. 

My advice is that if you are an owner association that bills for water, along with other assessments, then if you bill for water separately, and the water bill is not paid, you can shut off water (see below). Or, if there is a single bill, and it is unpaid, which includes water charges, you can shut off the water. You cannot shut off water for nonpayment of other assessments otherwise.

But why ever shut off water, unless it is a longstanding water only debt where you have tried absolutely everything to encourage payment, including payments on the arrearage over time, and many documented attempts? And the delinquent members have serious attitude problems that are basically, we aren't going to pay you anything? But this is very rare. The people you are dealing with are almost always members, and as such, they are you. They are broke or they would pay. Make their lives easier by helping them to a repayment agreement that they can afford. 

I have pages of this kind of advice, but you get the point. What kind of Board do you want to be?

Rob

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

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From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of scott at scottgthomaslaw.com <mailto:scott at scottgthomaslaw.com> 
Sent: Wednesday, April 24, 2019 7:48 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Cutting Off Water OK?

There was a 60 minutes episode many years ago about a small city in the Midwest that cut off water for an unpaid bill.  The town clerk was interviewed and justified cutting off the water because the father in the family was known to buy a 6 pack of cheap beer on the way home from work on payday (small town so everyone knows each other).  The reason their water bill was so high was because one of the children in the family had a lung disorder that required a machine, which used a large volume of water to work.  Child died when water was cut off.  The portrayal of the town, and especially the town clerk, was not generous.  Actually, the episode was one of the things I thought about when I was applying to law school.  Probably not what you wanted to hear.

From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  <wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of Roger Moss
Sent: Wednesday, April 24, 2019 5:55 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Cutting Off Water OK?

No, it is not okay to cut off water to a residence because HOA dues are unpaid. I mean, are these people kidding? No, I know better. It is a condo association.

I imagine you have been sending hounds of hell letters to the resident at your client’s direction. Whether you have or not, I recommend your client engage a professional neutral to contact the resident. Doing so may surface clues to resolve the matter. Hire someone who has actually managed real estate if possible, and understands the role of behavioral health issues in creating absurd situations like you describe. Chances are overwhelming that illness is operating somewhere in this scenario.

If these efforts fail, then the HOA should pursue other remedies they have under these circumstances. No matter the theoretical legality of cutting off the water, it’s a stupid move that will backfire. Not the best reason to avoid such an act, but one your client may find palatable than others.

Roger A. Moss, Esq. 

Pacific Conflict Intervention
206.790.1971 Seattle
415.371.9724 San Francisco
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On Apr 24, 2019, at 5:00 PM, Paul Neumiller <pneumiller at hotmail.com <mailto:pneumiller at hotmail.com> > wrote:

Listmates, I represent a Condo Association formed under the Horizontal Property Regimes Act.  Assume they have not elected to be governed by any later Act. They ask if they really have the power to cut off water to a unit that is behind in the payment of assessments.  The Declaration says that “the Board shall have the right after having given ten (10) days notice to any unit owner who is delinquent in paying his assessments or charges, to cut off any or all utility services to the delinquent owner’s unit until such assessments or charges are paid.”  Also, RCW64.32.200 gives the same right (“ten days notice shall be given the delinquent apartment owner to the effect that unless such assessment is paid within ten days any or all utility services will be forthwith severed and shall remain severed until such assessment is paid.)  Later condo acts did not carry on this express provision. 

OK, I guess I have a fear of the unknown.  After reviewing about fifty cases (using the words “condominium” and “utilities” for search parameters), I have found no reported WA cases that address this issue.  I know this is a draconian act but the client has asked the question anyway.  The local municipality that provides the water says they will not shut off the water without a court order but they have no control over a shut off valve that is beyond the municipality’s meter.  Assume the Condo Association does have its own shut-off valve. 

I know, I know.  What if a disabled person lives there?  What if a person lives there that relies on water for medical treatment, etc.  Any thoughts or war stories?

<Paul A  Neumiller.vcf>***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

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