Northwest Condo & HOA Law Blog : Washington & Oregon Construction Defect Lawyer & Attorney : Barker Martin Law Firm : Homeowner Associations, Condos : Seattle, Portland

Homeowner associations often inquire as to their authority to tow vehicles within their communities. The following outline describes general Oregon law regarding homeowners associations’ legal authority and required procedures for towing vehicles. Please note that this posting contains general information and is not legal advice for a specific towing event, which would be unique to the circumstances surrounding that event.

The information below includes amendments to Oregon state law that became effective January 1, 2008. 

First, the board needs to determine if the streets within its community are public or private roads. This information should be contained within the Association’s Declaration and Plat. 

A.  Vehicles on Public Property

• Only a law enforcement officer or public official having jurisdiction over the property on which the vehicle is located has authority to remove and take custody of a vehicle located on a public right-of-way. A vehicle constituting a traffic hazard can be removed immediately. Otherwise, law enforcement must tag the vehicle and provide at least 24 hours’ notice before impounding it.
• To have a vehicle removed from a public right-of-way, a homeowner association’s options are limited to notifying the appropriate public agency of the location of the vehicle it wants removed. The public official may then arrange for and authorize the vehicle’s removal after 24 hours. The association may not authorize removing a vehicle from public property.

B.  Vehicles on Private Property

• A key issue is whether the vehicle is unlawfully parked at a “parking facility” or on “proscribed property.” A parking facility is any property used for motor vehicle parking. Proscribed property is any part of private property where a reasonable person would conclude that parking is normally not permitted at all or where a land use regulation prohibits parking, or property that is used primarily for parking at a dwelling unit (defined as a single-family residence or duplex). Oregon law prohibits leaving a vehicle on a parking facility if there is a no parking (or restricted parking) sign posted in plain view. In contrast, it is illegal to park on proscribed property without the permission of the owner whether or not a “no parking” sign is posted.
• Property owners may have illegally parked vehicles towed after notifying the local law enforcement. From a practical standpoint, however, tow companies generally will not tow vehicles from locations without “no parking” signs.
• Alternatively, property owners may tow abandoned vehicles from private property after: (1) posting a notice on the vehicle stating that it will be towed if not removed within 72 hours; (2) contacting the local law enforcement; and (3) completing a form setting forth the vehicle description, location from which the vehicle will be towed, and a statement that the above outlined requirements have been met. As of January 1, 2008, state law provides civil immunity for individuals or entities that tow the abandoned vehicle. 
• Additionally, a property owner in lawful possession of a vehicle with an appraised value under $500 may request the local authority to dispose of the vehicle. No certificate of title is required, but the local authority must verify the property owner’s lawful possession. The local authority must also issue certain notifications to the Department of Transportation and the person requesting the disposal. The advantage of this process is that it extinguishes all prior ownership and possessory rights. The property owner, however, may be charged a disposal fee.

C.  Summary

This posting does not provide an exhaustive list of Oregon law regarding towing vehicles and each association should review the local ordinances controlling for their jurisdiction. In general, state law requires that a homeowner association contact a public official, most likely local law enforcement, to have a vehicle removed from public property. An association may remove vehicles located on private property under its control immediately if the property is posted or if it qualifies as residential property. On unposted nonresidential property the vehicle may be towed after it has been abandoned for seventy-two (72) hours.

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Currently, SHB 2014 provides that a condominium converter must give the current tenant 120 days’ notice of the conversion and must provide notice of any relocation assistance. In addition, any construction work commenced during that 120 days must not disturb the tenants’ “quiet enjoyment.” The bill defers to the local cities and counties whether to require the conversion declarant to fund relocation assistance.  

Track the status of SHB 2014 here. 

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As the Washington legislature begins its work this session, Senate Bill 6215, relating to reserve accounts and studies for condominium associations has been sponsored by Senators Rodney Tom, Jim Honeyford and Bob McCaslin. The bill would encourage condominium associations to have reserve studies conducted by reserve study professionals and establish reserve accounts to fund major maintenance, repair and replacement of common elements. However, the bill provides no penalties for an association’s failure to do so unless an association has failed to do so for three years and 20% of the homeowners demand that a reserve study be completed.   

The bill was set for hearing before the Senate Consumer Protection and Housing Committee on January 18, 2007. Check out the current iteration of the bill and its status here. 

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In 2006, the Washington legislature established a committee to study the problems facing owners in non-condo HOAs and to come up with recommendations on revisions to the Homeowners’ Associations Act. The Homeowners Act Committee was charged with reviewing the Act, the Uniform Common Interest Ownership Act and considering specific problems faced by Washington HOAs such as disclosures to buyers in an HOA, alternative dispute resolution for HOA/owner disputes and methods for amending CC&Rs, among other issues. 

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On January 4, 2008, the Federal Communications Commission (FCC) issued notice that it would implement its proposed ban on the use of exclusive contracts for existing video services in community associations and other multi-family housing developments. The ban would prevent cable companies from enforcing exclusivity clauses in video service contracts commencing in March 2008.

Previously, the FCC had issued an order confirming an October announcement that the agency would ban the enforcement of exclusivity clauses in existing video service contracts. An exclusivity clause is a contract term giving a provider, usually a cable company, the exclusive right of access or the exclusive right to provide video service in a community. As written, the order may affect community associations across the country.

The order applies to cable operators, telephone common carriers, and open video system operators. Providers of Direct Broadcast Satellite services and "private cable operators," which are companies that provide video service without using local rights-of-way, are not covered

Several industry groups have challenged the FCC’s authority to implement such a ban and the challenge will most likely delay implementation of the ruling into summer.

If your association has a contract with a video or cable programming distributor, you may want to review its provisions to determine if there is an exclusivity clause, and if so, what the effect on the contract will be once the FCC order goes into effect, assuming industry groups are unsuccessful in blocking the ban.

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A case decided on the last day of December 2007 may affect how older condominiums vote on additions to condos.  Boards of older condominiums built prior to July 1, 1990 subject to the Horizontal Property Regimes Act often have difficulties knowing what percentage vote is required to do certain acts. In a recent decision, Lake v. Woodcreek Homeowners Association, Division I of the Washington Court of Appeals held that a homeowner adding a bonus room onto his unit actually converted common area to part of his unit under the theory that the air space around his unit was common area because common areas were defined as anything “not expressly described as part of the individual residence apartments or as limited common area.” Thus, the declaration required consent of all unit owners. This case could have a major impact on the ability of architectural control committees to approve exterior construction on condominiums subject to the Horizontal Property Regimes Act.

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There is a common misconception among builders and buyers of condominium conversions that builders who convert apartments into condos are only liable for “what they touch” or the parts of the condominium that they actually improve. This is not correct. In fact, there are a number of avenues for recovery when a conversion condominium experiences leaks or other problems relating to original construction defects even when the converter did not touch that part of the building. Among these is a claim against the converter under the implied warranty of suitability, which is just now getting some focus in the industry. 

In addition to the well-known warranties of quality for work actually done by a builder converting a building into condos, the Condo Act also provides that the creator of the condominium warrants that “a unit and the common elements in the condominium are suitable for the ordinary uses of real estate of its type.” This is called the implied warranty of suitability or fitness. Unlike the implied warranties of quality, this warranty applies to units and common elements, regardless of whether the developer did any work on those elements. 

It is unsettled what “suitable for ordinary uses” means because there is no further definition of the term in the statute, nor are there any published legal opinions relating to this matter in the context of conversion condominiums. It may be that this warranty equates with a warranty of habitability, meaning the building is so unsafe as to be virtually uninhabitable under certain circumstances. But it may mean just what it says – that the building is “unsuitable” for its ordinary uses rather than uninhabitable. We have and will continue to argue that a building that leaks is unsuitable for use as someone’s home. To our knowledge, this theory has not been tested in the courts, but we expect to see breach of this warranty pleaded in the near future, especially where, for example, a 75-year-old apartment has been converted for current use as condos with little to no renovation.

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