Lesley Lueke, Esq.


Homeowners choose to live in community associations for the amenities such as use of a pool, shared expenses, and the expectation of conformity by neighbors to association standards. To owners, the positives of living in an association should outweigh the burdens placed on their own activities. But some buyers do not realize the shortcomings of living in close proximity with their neighbors, or how community rules may restrict their personal freedom to use their property. Neighbors may be on different daily schedules or have different values than others in the community. Simple differences could lead to disputes over whether an owner’s conduct creates a prohibited nuisance to their neighbor. A barking dog, a third-shift worker showering at odd hours, or a tree blocking a view can all cause varying levels of conflict among neighbors. Owners often demand the board step in to resolve neighbor disputes, and make one owner change to satisfy another. What is a board to do?


Boards should not act on behalf of a single owner, but they can intervene when problems affect several owners. When an owner formally complains, we believe boards have a duty to adequately investigate and use objective information to determine if a violation of the governing documents exists. Boards should refrain from intervening where they are not authorized to act or when police or public agencies have authority. Boards can use their discretion to evaluate the best interests of the association when determining whether to file a suit on behalf of the association. Individual owners have the power to enforce the documents against a neighbor in court themselves.


Both the HOA and Condo Acts have provisions that allow the association to intervene or participate in a dispute between two or more homeowners, but not on behalf of one owner against another. See RCW 64.38.025(4) and RCW 64.34.304(1)(d). If the dispute involves only two owners, the board may not get in involved beyond its duty to determine if a violation exists.


If the dispute involves several owners, the board may use its discretion in deciding whether to intervene. If the violating behavior continues after exhausting all remedies in the governing documents, the association may file a suit on behalf of the association. The board should be cautious when taking such drastic measures as a lawsuit. It should consider the costs associated with litigation and the likelihood of a favorable outcome. Sometimes mediation could produce a beneficial outcome for a fraction of the cost, and the board can choose to serve as mediator.


Noise complaints are common occurrences, especially in condo associations. Everyday activities such as walking, vacuuming, or watching TV may be enough to annoy surrounding neighbors. In an ideal world, the offended owner and the noisy owner could talk and come up with a solution. In reality, this is not always feasible.


We almost always recommend that a neighbor be required to notify the offending owner of a problem before the board is involved. Sometimes owners are not aware of their offending conduct and are willing to modify their behavior to eliminate the problem. Sometimes owners want to remain anonymous. The board can ignore most anonymous complaints, but should investigate complaints alleging serious offenses like financial misconduct. The board should probably not interject where statutes or governing documents do not authorize the board to act, such as when dealing with criminal conduct or mental disabilities.


But what should a board do when two owners cannot come to a resolution on their own? We believe the board is obligated to determine if a violation of the governing documents exists. The board’s duty to investigate arises when an owner makes a formal


complaint to the board. The board should follow its governing documents’ fine and enforcement provisions,


if they exist. The


documents may require notice of the possible violation and an opportunity to be heard. If they are silent, the board should act reasonably. The board (or other authorized delegate) should conduct adequate inquiry to make a determination, and must rely on objective information in making its decision. [See Riss v. Angel, 80 Wash. App.533 (1996)]. Once the association determines whether a violation of the governing documents exists, the association’s involvement in the dispute could be finished.


A real life scenario involving a single father owner and a particularly sensitive downstairs neighbor illustrates how a board should handle one owner’s complaint about another owner. Each day, the father ran on his treadmill at 9:00 am. When he brought his child home from school every afternoon, their dog barked and greeted them. After dinner at 6:00 pm, they cleaned the unit and vacuumed.


The neighbor below complained to the board about the noise, but no other neighbors reported any noise. The downstairs neighbor threatened legal action against the board for not enforcing the Declaration. The board looked to its governing documents, which outlined procedures for complaints. The board notified the father of the noise complaint (before finding any violation) and held a hearing (think “opportunity to be heard”), during which the board inquired as to the activities. The downstairs neighbor admitted he only heard the noise for short periods. None of the noise occurred during the association’s “quiet hours”. The board listened to both sides and asked questions. The board found the father’s use of his unit to be reasonable, and that he was not in violation of any provision of the governing documents. The noise complained of was what should be expected for someone living in multi-family housing.


Providing an opportunity to be heard fulfilled the board’s duty of inquiry. By seeking information from people other than the complaining owner, it based its determination on objective information.


Consider a twist on the above scenario where the father runs on his treadmill at 4:00 am while playing loud music, and several neighbors complain. If the board finds, after notice and an opportunity to be heard, that a violation exists, the board can use its discretion to intervene or file a suit.


Disputes between owners are not limited to noise complaints. What if an owner in an HOA plants a tree that grows to block a neighbor’s view? The neighbor asks the owner to trim the tree, but the owner refuses. If the tree only affects the two owners, and the neighbor formally complains to the board, we believe the board is obligated to determine if the tree violates the governing documents. The board should make inquiry, and probably visit both homes to obtain objective information about the issue. Even if the board finds a violation, it need not go further to resolve the dispute. The board might consider a fine, but need not consider litigation. Owners can pursue legal remedies on their own.


While it is impossible to avoid all disputes between owners, guidelines can help prevent some disputes by providing parameters for what the board considers acceptable. Rules and regulations can contain provisions that set out standards for noise, conduct, and architectural control. Many associations set “quiet hours”, and regulate noise during those hours, such as running a dishwasher or playing music above a certain decibel. A rule stating “A tree that is the same height as or shorter than the owner’s house will not be found to block a view” may set expectations and temper view disputes. The more specific the governing documents, the easier it is for owners to comply.


www.wscai.org 17


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32