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

In Garron v. Pier Point Condominiums Association, Division One of the Washington Court of Appeals affirmed the trial court’s summary judgment dismissal of a personal injury lawsuit by a housecleaner against the condominium association. While cleaning one of the condominium units, the plaintiff slipped and fell on a wet tiled walkway in the common area of the condo. The court agreed with the association that there was no evidence the association knew or should have known about the slippery and dangerous walkway.

The Pier Point Condominium is a small eight-unit condo in Oak Harbor. The plaintiff had cleaned a unit at the condo every week for several years, so she was familiar with the complex. She was aware that when it rained, the walkway tiles became wet and slippery. The unit owner who employed the plaintiff testified he believed the walkway was dangerous when it rained, but had failed to inform the association of his concern. The appellate court concluded, as had the trial court, that there was no evidence the association knew or should have known about the alleged danger created by wet tiles on the walkway.

The appellate court also denied the plaintiff’s attempt to amend her complaint to sue the individual condominium unit owners. The court relied upon a specific provision of the Washington Condominium Act that states “an action alleging a wrong done by the association must be brought against the association and not against any unit owner or any officer or director of the association.” See RCW 64.34.344.

This case turned on the specific testimony of the parties. The plaintiff herself testified that she was aware that the steps got wet when it rained. Although there was some testimony about puddling of water on the walkway tiles, the plaintiff testified there were no puddles the day she slipped and was injured.

Although the plaintiff was unsuccessful in this particular case, associations should be vigilant and act as soon as reasonably possible to eliminate dangerous conditions.

For more information on this case, or to answer any related questions involving association liability, select the “Contact” tab at the top of this blog page to reach one of our attorneys.      

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Under revised guidelines effective October 1, 2009, the FHA is implementing a new approval process for condominiums to be eligible for FHA / HUD financing. Under the new guidelines, the spot approval process will no longer be available, and approvals expire every two years.  Click here to see a copy of the HUD Notice.

 - Historically, to utilize HUD / FHA financing, a condominium could, under certain circumstances, receive “spot approval” for lending with HUD / FHA, or the association was required prepare and submit a comprehensive package of materials for consideration for “permanent” approval. 

 - Under the October 1, 2009 guidelines, FHA will allow lenders to determine project eligibility, review project documentation, and certify compliance with the National Housing Act requirements. We expect lenders will approach association boards and managers, asking for certain information, certifications, and even legal opinions regarding compliance with certain legal requirements.

 - If a condominium is not on the FHA-approved list, or has lost its approval because it underwent repairs or litigation, or for some other reason, the board of directors may wish to consider applying for approval (or re-approval).  

The attorneys and staff at Barker Martin, P.S. are ready to help your association adjust to these changes.  Just select the “Contact” tab at the top of this blog page to reach one of our attorneys.

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With the economic crisis continuing and foreclosure rates still increasing, I have heard a lot of talk recently regarding rental cap hardship exceptions.  Many condominium and homeowner association boards of directors whose associations have rental ceilings are feeling the pinch between following their CC&Rs and facing unprecedented levels of claims of hardship.

A typical rental ceiling Hardship Exception leaves much discretion to the board:

Hardship Exception. Where, on written application from a homeowner, the Board determines that a hardship exists whereby, due to circumstances beyond the control of the owner, that owner would suffer serious harm by virtue of the limitation on renting contained in this Section 4.6, and where the Board further determines that a variance from the policies contained therein would not detrimentally affect the other homeowners or secondary mortgage market financing, lender approval or VA or FHA approval, the Board may, in its discretion, grant an owner a waiver of the Rental Ceiling for a temporary period not to exceed twelve (12) months.

So what can/should a board do in these trying economic trying times when balancing an individual owner's financial difficulty with the interests of the remaining homeowners?  Although each association should be considered on a case-by-case basis, I would not be averse to recommending boards exercise a bit more leeway by exercising a fairly liberal approach to granting rental cap hardship exceptions.

Perhaps granting a six-month lease, in lieu of a full year, may be the most appropriate compromise for boards whose associations have reached their rental caps, yet have owners who are experiencing severe financial strain.

If a board decides to grant a hardship exception, it should ensure it documents the basis with specific grounds, to make sure it does not open itself to claims by other homeowners of selective enforcement.

For more details on rental restrictions, rental caps or hardship exceptions, do not hesitate to contact Barker Martin, P.S. by selecting the “Contact” tab at the top of this blog page. 

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