Common Problems


with Common Property: Wilbur v. Admiral’s Cove Beach Club


Tim Feth


Many of our communities share—what I call for the purposes of this article—“common property.” They can be necessary things like walls, roofs, and elevators. And they can be amenities like patios, workout facilities, and swimming pools. An association’s governing documents can identify certain common property as “common elements” or “common areas,” and the association is usually tasked with maintaining them. But what happens when common property becomes damaged or dilapidated beyond repair? A recent Washington Court of Appeals case, Wilbur v. Admiral’s Cove Beach Club, took a look at this problem.


Admiral’s Cove Beach Club is a non-profit corporation located on Whidbey Island. As the court described it, “Owners of lots within the plat [where the Club is located] are eligible for membership in the Admiral’s Cove Beach Club.” The Club owns a number of what the court calls “recreational assets” including a waterfront beach area, a fire pit, volleyball courts, and a playground. The subject of the case was an outdoor, Olympic-sized swimming pool with views of the Olympic Mountains and the Puget Sound. Unfortunately, in the over 40 years since the Club’s founding, the pool had fallen into disrepair.


In 2012, at the Club’s annual meeting, members passed a motion to form a committee that would help decide what to do about the pool. That committee had three jobs: 1) investigate the costs of repairing and renovating the pool, 2) develop potential payment options, and 3) submit the committee’s findings to the Club’s board of directors. After completing its tasks, the committee informed the board that repairs would cost $650,000.


The board later sent a ballot out to the community, asking members to vote on the fate of the pool. The ballot asked whether the Club should repair the pool, which would require a special assessment of $650,000, or whether the Club should remove the pool, which would require a special assessment of $200,000. The community voted to remove the pool.


Unhappy with the results of the vote, a Club member sued the Club in an attempt to prevent the Club from removing the pool. The Club member had two legal


26 Community Associations Journal | January/February 2017


theories, but the court rejected them both, finding that the Club had the authority to remove the pool.


The first theory was based on the 2012 motion to create the committee that gathered information about repairing the pool. If the Club had created the committee with the intent of repairing and renovating the pool, the Club member argued, the Club must follow through on those repairs and renovations. The court disagreed. The motion to create the committee bound only the committee. It did not bind the board.


The second, and more interesting, theory was based on the Club’s governing documents. Although the Club’s Articles of Incorporation made no mention of the pool, the Club’s Bylaws formed six “standing” committees, two of which were dedicated to maintaining the pool. The Club member argued that because the Bylaws created these committees, the Bylaws implicitly required the continuing existence of the pool. The court found no such implicit requirement. Instead, the court pointed to language in the Articles of Incorporation that allowed the board “to sell, convey… transfer and otherwise dispose of” any of the Club’s property.


In the end, the court found that the Club was allowed to remove the swimming pool. There are two big takeaways from the case:


1 Courts are unwilling to bind a board of directors to a certain policy or motion unless that policy or motion explicitly says the board is obligated to take certain actions.


2 Even though an association’s governing documents may specify particular common-property amenities, the association is not necessarily required to keep those amenities forever. If common property falls into disrepair, the association probably has the authority to remove it.


It is worth noting that Admiral’s Cove is an unpublished decision and as such has no precedential value. This means that other courts—even other courts in Washington—are unlikely to follow it, and it may therefore have limited application in the future. Due to this uncertainty, and the variability of governing documents, it is always a good idea to get legal advice before undertaking removal of common property.


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