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

The following is part two of a two-part article recently published in the January 2012 edition of WSCAI Washington Communities'Journal:

Recruit Prospective Board Members Early

Many community associations have difficulty filling officer and director positions. There are multiple reasons for this apathy; however, as with many volunteer positions, serving as a community association officer or director can be a highly rewarding experience.

Generally, voting for board positions occurs at the annual meeting. Boards who simply ask for nominations at the meeting do a disservice to themselves and their communities. Recruitment of board members is one of the common traits of successful common interest communities. A board member should begin thinking about his or her replacement almost from the time they first step onto the board. Identification of charismatic or effective leaders and managers within a community may take up to a year, or more. Persuading, convincing or even cajoling a neighbor to run as a board member may take even longer!

Nominations of directors should be requested well in advance of the annual meeting. A brief bio or “platform statement” of each candidate may be included with the meeting notice and agenda. Voting for director positions must comply with the provisions of the association’s governing documents, most likely found in the bylaws. Most associations allow each candidate a few minutes to speak to the membership prior to the vote. Once the directors are voted in and assume their positions, often their first order of business is to agree upon officer positions. This action ordinarily occurs immediately following the annual meeting.

Overcoming Potential Pitfalls

Though reaching quorum is often stated by associations as a hurdle in achieving a successful annual meeting, following the steps described above in planning and running an effective combined business meeting and social event should result in higher attendance and an ability to reach quorum without difficulty.

Under the Washington Condominium Act (“WCA”), unless the bylaws specify a larger percentage, a quorum is present throughout any meeting of the association if the owners of units to which 25% of the votes of the association are allocated are present in person or by proxy at the beginning of the meeting.[1] Under the Washington Homeowner Association Act (“HOA Act”), unless “the governing documents” specify a different percentage, a quorum is present if the owners to which 34% of the votes of the association are allocated are present in person or by proxy at the beginning of the meeting.[2]

Proxies also allow associations to reach quorum even if many homeowners do not personally attend the meeting. Under the WCA, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner.[3] A unit owner may not revoke a proxy except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. Unless stated otherwise in the proxy, a proxy terminates eleven months after its date of issuance.[4] Though the HOA Act is silent regarding proxies, general corporations law essentially tracks the WCA on this issue.

Some associations have experienced legal challenges to business conducted at an annual meeting simply because they failed to follow procedural hurdles. Common interest communities in Washington must follow strict notice requirements to ensure a legally binding annual meeting. Under the HOA Act, not less than 14 nor more than 60 days in advance of any meeting, the secretary or other officers specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by first-class United States mail to the mailing address of each owner or to any other mailing address designated in writing by the owner.[5] The notice of any meeting shall state the time and place of the meeting and the business to be placed on the agenda by the board of directors for a vote by the owners.[6] The rules are the same for condominiums in Washington under the WCA, except the minimum notice period is shortened from 14 to not less than 10 days.[7]

Success!

A community association who conducts comprehensive event planning, combines the business meeting with a social activity, includes community members and takes into account renters and families with children, can transform dread into success--turning the annual meeting event into an opportunity for the board and association to shine.

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Many homeowner associations have covenants within their CC&Rs that limit a homeowner's right to restrict a neighbor's view.  For a view covenant to be legally enforceable, it must be included within a validly recorded instrument, such as the association's declaration or plat.  The covenants may include structures (e.g., homes, detached garages, sheds, fences, etc.), vegetation (e.g., trees or bushes) or even vehicles.  The view covenants also may be absolute or discretionary.

An example of an absolute view covenant would be a "25-foot height restriction on all structures constructed on the plat."  A discretionary view covenant would be a "restriction on trees or other vegetation that impairs the view from an adjoining owner's property."  Both absolute and discretionary view covenants must be reasonable and applied uniformily.  It should be no surprise that there are many more disputes and litigation involving discretionary view covenants than absolute covenants.

To enforce a view right, a homeowner associaton may seek injunctive relief from a court.  Time ordinarily is of the essence.  For example, if an owner is in the middle of constructing a home that exceeds the view covenant's height restriction, the plaintiff association would want to move without delay.  If the association delays for an unreasonable amount of time in seeking judicial intervention, the offending homeowner may be able to rely upon a laches, acquiescence or waiver defense.  What this means is if the plaintiff had constructive knowledge of the offending party's actions and through his words or conduct represents that he will offer no opposition, then the plaintiff may be barred from stopping the homeowner's conduct, or at least be limited in obtaining the relief sought.

I have found that many boards delay enforcing view restrictions, and often these delays prejudice their abilities to obtain successful outcomes (or at least efficient and timely successful results).  Either these associations think (hope) the offending party will come around, or they do not want to incur legal fees in hiring an attorney. Remember, most CC&Rs contain provisions for the Association to recover its attorneys' fees and costs incurred in enforcing its governing documents.

If your association would like more information on creating or enforcing view covenants, feel free to contact Barker Martin, P.S. by selecting the "Contact" tab at the top of this blog page.
 

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