Washington Supreme Court Invalidates Foreclosure Due to Violation of State Law

The Washington Supreme Court recently held in Albice v. Premier Mortgage Services of Washington, Inc. that a failure to comply with a statutory requirement relating to the timing of a non-judicial foreclosure sale invalidated that sale.  According to RCW 61.24.040(6), a trustee may continue a sale only up to 120 days from the original sale date.  The sale in this case was invalid because it took place 161 days from the original sale date.

           

Washington condominium and homeowners associations also face judicial scrutiny if they fail to comply with all applicable statutory requirements relating to their foreclosures.  Association boards should strive to make their foreclosures above reproach from a procedural standpoint.  Consulting with an experienced community association attorney on a regular basis is the best way to achieve that goal.

Restrictions on Smoking Should Be Handled With Care

The King County Council is currently considering a proposal to prohibit smoking in the busiest areas of county parks.  If that proposal is adopted, King County will join the hundreds of other local governments around the country which have restricted smoking in public parks. Washington condominium and homeowners associations have an analogous authority to ban smoking in their common areas unless their governing documents specifically provide otherwise.  However, those associations’ boards must first adopt and publish rules to that effect in accordance with applicable procedures.

Smoking within the units of a condominium can only be restricted by amending that condominium’s declaration.  This requires obtaining the approval of a super-majority of the owners in accordance with applicable procedures.  Boards should be prepared for intense opposition to anti-smoking amendments.  They should also be aware that litigation is occasionally necessary to establish the validity of those amendments.

Condominium and homeowners associations that want to restrict smoking should seek legal advice in advance from attorneys with the expertise to help them achieve that goal in a legally defensible manner.  Failing to do so could be hazardous to their health.   

Does Your Association Have an Emergency Response Plan?

Four years ago, a Kansas developer purchased a decommissioned nuclear missile silo complex and transformed it into a luxury condominium project.  With a two-million dollar price tag attached to each unit, these units are designed for people who make disaster preparedness their number-one priority.  Each unit features steel-reinforced concrete walls and comes stocked with a five-year supply of food. 

Community associations should design plans to provide a basic level of emergency readiness in case disaster strikes.  Boards should consider forming emergency response committees and appointing emergency response coordinators to implement those plans.  Coordinators should be provided with contact information for all current residents and the local emergency services.  

Seattle-area associations seeking support in the development of emergency response plans can attend one of the free classes offered twice monthly by the City of Seattle's Office of Emergency Management. The City's program is designed to teach communities disaster preparation techniques that are tailored to the needs of the Puget Sound area.  Information about the City's program can be found on its website or by calling (206) 233-5076.

Internal Appeal Procedures and Dispute Resolution Standards Can Reduce Lawsuits

The Washington Court of Appeals recently issued an unpublished opinion relating to the Prince Hall Grand Lodge of Free & Accepted Masons of Washington.  A member of the Grand Lodge was suspended after he raised allegations that one of the Grand Masters and the Grand Lodge Entertainment Committee had mismanaged funds.  The member sued to contest that suspension.  However, the Grand Lodge Constitution states that “no member … shall resort to civil courts to establish any right or to redress any grievances arising out of the membership in the Order or connected therewith until … he shall have exhausted the remedies within the Order and in a manner provided by the Constitution, law and regulations of this Grand Lodge.”

The appellate court upheld the requirement that members of the Grand Lodge must exhaust its internal appeal procedures before filing lawsuits.  It emphasized Washington courts’ unwillingness to interfere with private associations’ interpretations of internal rules and procedures unless they are arbitrary and unreasonable.  The court affirmed the dismissal of the member’s lawsuit because he did not pursue the proper appeal procedure (vote of the members at the next annual meeting) before filing it.     

Some Washington condominium and homeowners associations have internal appeal procedures and dispute resolution standards in their original governing documents.  Many others do not.  For those associations in the latter category, amending the declaration or covenants to require exhaustion of internal appeal procedures and fulfillment of dispute resolution requirements (such as mandatory mediation) can help defuse some future disputes with owners before they turn into lawsuits.          

Disputes Between Owners Pose Risks to Community Associations

It is always unfortunate when disputes between neighbors escalate into litigation. The Washington Court of Appeals was recently confronted with just such a case. The first sentence of its unpublished opinion last month sets the tone: “Tensions arose among neighbors in a Redmond cul-de-sac after the Wherretts began parking numerous vehicles and buses on their property and on the street.” Police involvement, surveillance, civil anti-harassment orders, and a lawsuit followed. The court notes during the course of its opinion that taking numerous photographs and videos of items in public view for the purpose of documenting alleged misconduct did not form the basis for a legal claim against one of the owners. The court ultimately affirms the summary judgment dismissal of the plaintiff’s case.

Community association boards must choose their approach carefully when owners quarrel. Do they stay out of the dispute entirely? Do they provide a forum to discuss the dispute? Do they convey a position regarding the dispute? All of those choices involve varying amounts of risk that the association will be sued by one of the owners. Minimizing that risk is an important (some would say the most important) consideration when boards are evaluating how to respond to disputes between owners.

Boards understandably tend to prefer the “stay out of it” approach to owner disputes whenever possible, and this is a legitimate response in many instances. However, boards must verify that disputes do not involve a violation of their association's governing documents before selecting that option. If a board fails to do so and the dispute does involve such a violation, then one of the owners may be able to successfully argue that the association is also liable for damages.