association may, should, or must do. And the governing documents, to the extent they mandate enforcement, do not typically provide instruction regarding the extent to which enforcement must occur.


WUCIOA leaves it to the board’s discretion—which must be exercised reasonably—regarding whether and to what extent to take enforcement action. RCW 64.90.405(7) specifies that the board “may determine whether to take enforcement action by exercising the association’s power to impose sanctions or commencing an action for a violation of the governing documents…”


WUCIOA leaves it to the board’s discretion— which must be exercised reasonably—regarding whether and to what extent to take enforcement action.


The statute also provides input regarding when enforcement action need not be taken. RCW 64.90.405(8) states in pertinent part: The board does not have a duty to take enforcement action if it determines that, under the facts and circumstances presented: (a) The association's legal position does not justify taking any or further enforcement action;


(b) The covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with law;


(c) Although a violation may exist or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association's resources; or


(d) It is not in the association's best interests to pursue an enforcement action.


WUCIOA also specifies at RCW 64.90.405(9) that the board’s decision regarding enforcement in one instance “does not prevent the board from taking action under another set of circumstances.” However, the board “may not be arbitrary or capricious in taking enforcement action.”


The reason WUCIOA is a suggested model for analyzing enforcement obligations is because it is the most current reflection of what our state’s legislature believes is required of an association when an alleged violation occurs.


Standard of Care


Boards should also take note of directors’ standard of care when determining whether and to what extent to enforce. Per RCW 24.03.127, a provision


of the Nonprofit Corporation Act, which applies to most community associations in our state: “A director shall perform duties of a director with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.”


A 2013 case from the Supreme Judicial Court of Maine also supplies some guidance regarding the extent to which a board should take enforcement action. In that case, an owner sued because of an alleged lack of effective enforcement of the community’s smoking ban. The court determined that the association did not engage in bad faith because it did not refuse to enforce; it simply did not enforce in the manner the owner wanted. This decision indicates that an association should at minimum investigate and determine a plan of action based on that investigation, which may be a decision not to take further steps if doing so does not appear to be warranted.


Enforcement Procedures


The basic steps to an enforcement proceeding include the following: 1) Receive a complaint; (2) Investigate, (3) Make a decision regarding whether the complaint is valid, (4) Make a decision about how the association is going to respond to the complaint, and (5) Notify the involved parties in writing. If the board decides not to pursue the matter, consider providing the owners with steps to resolve the matter themselves. If the association decides to continue to be involved, explain in the notice the anticipated next steps.


Harassment


Be aware that the board should take allegations of harassment seriously. Though sometimes such


allegations are made in retaliation against a complaining neighbor or the association, if valid, there may be legal exposure if the association does not attempt to do something to address the problem. Such harassment claims may include sexual harassment or harassment based on protected classes under applicable fair housing law—including without limitation sex, race, the presence of a disability, or families with children. If the association is on notice of harassment and has the power to correct the harassment but does not promptly do so, the association may be liable as a third party.


Continued On Page 26  wscai.org 25


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  |  Page 33  |  Page 34  |  Page 35  |  Page 36