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negligence”. See RCW 64.90.480(6). This is a higher standard than under RCW 64.34.360(5). For the sake of simplicity, we will focus on the lower standard in charging back “misconduct” amounts.


What constitutes misconduct?


The question then becomes what constitutes  “misconduct” in statue or case law, but below is a noncomprehensive list of examples of the type of action that generally falls under the “misconduct” umbrella:  Any violation of the association’s governing documents, including the declaration, bylaws, rules and regulations, or board policy, resolution, or decision.


 Any action or inaction that, in the determination of  intentional wrongdoing.


 The failure to promptly report to the association an issue that the owner (or anyone associated with the owner) is aware of, to the extent such delay results in damage.


 A violation of an owner’s obligations with respect to their unit. These include the duties to, at the owner’s sole expense, maintain, repair and replace components of the owner’s unit; and the responsible operation, maintenance, repair, and replacement of any plumbing  and heating/cooling equipment which serve only their units, whether or not located in the unit.


 the owner engaged in “misconduct”, it is advisable to give that owner notice and an opportunity to be heard before charging back those amounts. If done correctly, the chargeback based on “misconduct” is more likely to withstand a challenge by the owner.


Insurance Deductible:


Generally speaking, Washington state law requires associations to maintain insurance that covers the condominium against risks of physical loss. Furthermore, regardless of whether a loss is covered, there will still be amounts up to the deducible limit that the association must pay. Those amounts can be shifted back onto an owner if the governing documents are amended properly.


Standard insurance deductible shifting language may state something like, “Up to the amount of the deductible under the association’s policy, each unit owner shall be responsible for”, then describe situations where an association can put the cost back on an owner. These


include damage or loss within an owner’s unit if a unit owner damages another unit or the common areas from negligence or misconduct or damage from leaking appliances. With respect to appliances, it is important to look for potential mitigating language that an owner can use to shield themselves from liability (e.g. “failure to maintain” if there is no proof of such failure versus strict liability).


Inspection/Repairs:


A natural consequence living in a condominium is a situation where the board must have access an owner’s unit for common area maintenance, to repair or inspect an owner’s unit to prevent damage to another unit or common areas. Washington law provides that the association may access an owner’s unit for these reasons and others. See RCW 64.32.050(6); RCW 64.34.328(1); RCW 64.90. 440(2)-(3). Furthermore, the community has an interest in ensuring that the entire property is maintained properly to avoid the necessity and headache of expensive repairs after the fact.


An owner should be given written notice and a reasonable timeframe to inspect, maintain or repair the issue before the association gets involved.


Generally speaking, an owner should be given written notice and a reasonable timeframe to inspect, maintain or repair the issue before the association gets involved. But sometimes, owners ignore or do not comply, and further action must be taken. Under this circumstance, if the  result of the owner’s failure or refusal to inspect, maintain or repair, then those amounts can be specially assessed to the owner and the unit, which is then collectable in the same manner as regular assessments.


As always, if there are questions as to the substance or process of the levying of any amounts described in this article, reach out to your legal counsel to ensure amounts sought are levied correctly.


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