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Dan Zimberoff


Under the US Constitution, no one shall be “deprived of life, liberty or property without due process of law.” Common interest communities are private entities that are not subject to the US Constitution. Yet in Washington, both the Condominium Act (RCW 64.34, et seq.) and the Homeowners Association Act (RCW 64.38, et seq.) include mirror provisions requiring condominium and homeowner associations to abide by basic “due process” when imposing fines for CC&R or rules violations. Under the statutes, an association may:


“. . . after notice and an opportunity to be heard by the board of directors . . . and in accordance with such procedures as provided in the declaration or bylaws or rules and regulations adopted by the board of directors, levy reasonable fines in accordance with a previously established schedule. . . .”


RCW 64.34.304(1)(k); RCW 64.38.020(11). In the foregoing statutes, the legislature failed to elaborate upon what “an opportunity to be heard” actually means, what evidence can or should be evaluated, whether the owner has an opportunity to confront witnesses, whether the proceeding is closed or open to association members, and many other facets of the elementary due process requirement.


Without statutory guidance, to best describe “due process” that would allow a Washington condominium or homeowners association to turn an alleged violation into a valid fine/assessment, let us review a hypothetical enforcement action involving the fictitious Grassy Pointe Condominium Association. Like many condos, Grassy Pointe has a rule requiring that all owners pick up after their pets. Gladys Kravitz, an owner at the condo, sees her neighbor, Samantha Stephens, fail to pick up after her dog on the common area and immediately emails the association’s manager.


Initially, the board, or its authorized agent (think management company) must evaluate the information to determine whether there is sufficient “evidence” to move forward. Here, the email from Mrs. Kravitz is satisfactory, as it includes a description of what occurred and identifies the dog and owner. Since there is sufficient “evidence” to move forward, Grassy Pointe’s manager sends a written Notice of Violation1


stating the nature of the


offense, cites the relevant CC&R or Rule violated, references the dollar amount of the proposed fine from a previously published fine schedule ($25), and advises Ms. Stephens that she can within 10 days following receipt of the Notice request a hearing to explain or rebut the alleged violation.2


For condominium associations, it is fully discretionary whether the board holds enforcement hearings in closed or open sessions. Transparency weighs in favor of an open hearing, whereas, privacy and candor lean in favor of a closed hearing. Because the HOA Act requires open board meetings, there is an argument that an HOA board must hold enforcement hearings in open session unless the hearing is delegated to a committee. Regardless of which path it takes, an association should have detailed rules, protocols or a policy in place. Here, when the manager confirmed the date, time and location of the hearing to Ms. Stephens, he also included in the communication the basic ground rules (i.e., reasonable time limits for speaking, ability to question witnesses, statement that the board’s decision won’t be announced at the hearing, etc.).


At commencement of the Grassy Pointe hearing, the board president reviews the protocols and also reminds participants to be respectful of the process and one another. It is not a debate or contentious proceeding, nor is it a trial; courtroom rules do not apply. Common sense reasonableness should dictate the level of formality of the proceeding, admission and evaluation of evidence, and manner of deliberation. A board or committee has no duty to make inquiry; it can simply passively evaluate written or oral statements, if desired. Upon hearing all of the evidence, the board (or committee) should excuse all persons and deliberate in private. The standard of proof should be “preponderance of the evidence,” meaning more likely than not, rather than “beyond a reasonable doubt.”


Within a reasonable time period (days and not weeks or months), the association should send its ruling in writing to the owner with a statement whether the fine was upheld as an assessment, or whether it was dismissed. The decision should not include many details—stick to the basic facts and final ruling in lieu of lengthy explanations. If the association has delegated the hearing to a committee, it is prudent to allow the owner an opportunity to appeal the ruling to the full board of directors.


In this case, the Grassy Pointe board upholds the fine and assesses Ms. Stephens $25. Under the association’s governing documents the fine automatically becomes an assessment, with full collection and lien authority.


Under the statutes cited above,


there is no time limit for when a hearing must be requested; though, it is recommended that an association include a stated time period in its rules or enforcement policy. Similarly, there is no stated timetable for when the hearing must be conducted. If the owner fails to respond within the allotted time period (as stated in the Notice), or requests a hearing and fails to show, then the owner waives his opportunity to be heard and the fine automatically becomes an assessment.


In this case, Ms. Stephens emails the manager within five days of receiving the Notice and requests a hearing. In her request, Ms. Stephens states that she wants to be provided “all evidence” that had been provided to the board.3


The manager contacts the board


and advises Ms. Stephens in a follow-up email that the hearing will take place three weeks later. He includes as an attachment a copy of Mrs. Kravitz’s email.


www.wscai.org 9


It is important to note that the foregoing information and hypothetical example assume that an association’s governing documents are silent regarding due process protocols. Of course, it is always proper to strictly follow your association’s governing documents, especially when fining owners and depriving them of their property.


References


1 As to the means of communication, whether electronic or US Mail, an association should follow the express language of its governing documents.


2 Some associations allow for a “Warning Notice” be sent prior to a “Notice of Violation” and fine. If a warning is sent, there is no further due process requirement, as neither a fine nor other sanction is being imposed.


3 It is the author’s opinion that an association can move forward with an enforcement action without revealing the identity of an accusing owner; however, under basic notions of due process, if the owner requests a hearing or otherwise challenges the violation, the identity of the accusing owner must be disclosed.


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