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COVID-19 & Community Associations

WSCAI is monitoring the outbreak of the COVID-19 coronavirus and its impact on community associations. We are encouraging WSCAI members and the community associations industry in general to follow the latest guidance and updates issued by the Centers for Disease Control and Prevention.

WSCAI understands that members, homeowners, board members, community association managers, management company executives, and business partners may have questions about prevention, containment, classes, and events.

It is important to recognize, however, that WSCAI and its individual members are not health care professionals. The CDC and other qualified health officials should continue to be the primary source of current information and guidance.

We are offering general, precautionary guidance from officials and adding some common-sense guidelines and resources for our industry.

BLOG: Coronavirus Introduced New Legal Considerations For Common-Interest Communities
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WSCAI Community Association Resources

Community
Association Resources

Community Management:

Amending & Extending Proclamation 20-05 and 20-51 on Community Associations Meetings and Late Fees

Update: 20-51.1 Community Associations Meetings and Late Fees Amendments and Extensions to Proclamation 20-51

 Download PDF for Full Proclaimation Text

Governor's Proclamation 20-51 on Community Associations Meetings and Late Fees

This proclamation waives and suspends laws that create barriers to holding community association meetings remotely and also wavies/suspends statutes that permit the imposition and collection of fees for late payment of community assessments.

 Download PDF for Full Proclaimation Text

WSCAI Draft Template Letter

WSCAI has created a draft template letter for use with community association residents for communicating about COVID-19. The template is designed to be adapted to the needs of each particular community by the community’s Board of Directors and Manager.

Download Word Document  |  Download PDF

Landscaping Questions & Considerations
Question:       

Mrs. Jones, an elderly neighbor, on the corner hasn’t mowed her lawn nor done any spring yard clean up yet this season and her yard is looking really shabby. It is clearly violation of the maintenance covenants for the HOA. Should the Association send her a violation letter and start the enforcement process compelling her to do her yard work, including fines?

Answer:

Every year, April 1 kicks off the start to the landscaping season. In years past, like clockwork, irrigation was starting up, backflows were being tested and spring landscape cleaning was kicking off. Because day-to-day life is so unpredictable these days, it is no surprise that landscaping services are too.

The question posed is one received from a Board volunteer. Landscaping is a huge part of almost every association’s budget, is often the most visible common area activity a Board oversees and an issue for which most managers send multiple violation letters each year.

Like you, managers and clients are faced with an inconsistent application of what is considered an essential service. Some landscaping partners have made the difficult decision to furlough their crews until the work restrictions are lifted, while others have services or programs that do deem them essential. Each landscape maintenance company knows their own capabilities best and should adjust their availability accordingly.

Let’s get back to Mrs. Jones’ yard. The question above does not have a simple answer. The Board or manager needs to gather additional information before providing advice.

Question 1: What’s Mrs. Jones’ story?
If Mrs. Jones’ is disabled or elderly and usually has a lawn service help her with her landscaping, perhaps they were a small service provider who made the decision to close during the shelter at home order. If this owner doesn’t have the physical ability to handle the upkeep herself, then pursuing an enforcement action against her is not okay.

Is this the first time this owner’s yard has looked poorly, or does Mrs. Jones always need a gentle reminder that winter is over?

Is Mrs. Jones’ an essential worker who maybe is working more hours than ever these days? As a community manager, one would be hard pressed to send a violation letter to an owner in the medical field or other essential service who may be faced with mandatory overtime or another exhausting scenario due to COVID-19.

Gather the facts, even call Mrs. Jones first, and find out what the mitigating circumstances behind the situation are. In the current situation, Mrs. Jones is an 81-year-old who was recently widowed, lives alone and usually has John with “Pretty and Green” take care of her yard. We know that John has decided to close until the Governor lifts the work restrictions.

Question Two: What do We do?
Can’t you just send her a violation letter. She is just another owner. If we make concessions for her, don’t we have to for everyone?

Attorney Terry Leahy is fond of asking three questions in tough scenarios like this:

  • Must We?
  • May We?
  • Should We?

The Board is granted enforcement authority under its declaration, but it is afforded the right of interpretation. Must We; the answer is no. May We? You may, but Should We? In this scenario, the answer is NO. During this pandemic, especially: Board members – Govern with your heart. Managers – Advise compassion. There are consumer protection reporters like Jesse Jones and Hayley Guenthner who will happily share on the 6:00 news stories of the big-bad-HOA treating Grandma Jones unfairly. But more than the negative Tweet it may garner, it’s my opinion that it’s just the wrong thing to do.

On a case by case basis, the Board can choose to grant a hardship variance to the landscape maintenance requirement in its covenants. To guard against any concern about setting negative precedent, the Board of Directors could issue a letter to the owner or distribute a community-wide policy stating that it will make limited exceptions to certain rules as a result of and during the COVID-19 pandemic.

The Board wondered if they could just have the Association’s landscaper take care of her yard.

This is not an advisable approach unless Mrs. Jones’ would be willing to pay for the cost of her service. Consider that the whole membership pays into the common area maintenance contract. While this gesture is kindhearted and comes from a good place, it could be considered inequitable. Call your Association landscaper and get a bid for the price to do a one-time service of the home in question.

The Board President indicated he could just go mow her lawn for her.

Unless he has a neighbor-to-neighbor relationship with Mrs. Jones, then he should, in his capacity as her friend and neighbor, reach out to offer help. He should not demand entry as the Board president nor imply that he is “entering to cure” a violation.

The Board Vice President asked what would happen if they just let it go.

Unfortunately, in this situation, this is the corner home, right when you enter the Association. It is the first yard you see. After a string of warm, sunny days the yard really does look shabby. As the governor’s orders are unlikely to lift for another two weeks, doing nothing was not an option. While the Board does have authority to grant variances and hardship, simply ignoring blatant violations, without cause, creates a new slew of issues.

Answer:

What Was Done
Before phoning an owner, ensure that your calendar is clear and you aren’t going to be in a rush. Like you, many of the owners in client communities are going stir crazy. Make sure you have the time time to talk with this owner and listen to their concerns. Attempt to communicate the call is to ask how to help, not to ask when she was going to get her yard in shape. Prior to calling, obtain a bid from the Association’s landscaper on what it would cost to add her yard to their current weekly visit.

In our scenario, the board president also said Mrs. Jones could call him if she ever needed help. We learned that she knew she needed help, but she didn’t even know where to start. She agreed to have the established common area company handle her yard mowing and was so grateful to have officially met a new neighbor.

In closing, Terry Leahy offered some sage follow up advice, “New rule. For the duration, the ‘complaint form’ is now a ‘volunteer to help’ form. Whatever violation you are complaining about is the violation you are volunteering to remedy.” Yes, it’s very Pollyanna, but how about calling to state, “Mrs. Jones’ yard is looking very shabby. How can we help her?”

Download Scenario PDF

Legal Guidance:

RV Variance

Opinion from a “Stay-At Home Pursuant to Emergency Order of the Governor” attorney

The scenario is:

A hospital worker who volunteered to help treat patients who may have COVID-19 seeks approval from his/her HOA to be able to stay in a trailer on his/her property. This essential worker needs to self-isolate in his/her family’s trailer, parked in their driveway, to protect the worker’s children and/or family members while still being able to see them through the windows of their home.

The worker knows that having the trailer parked in their driveway for more than 72 hours is against HOA policy, but thought that if there was ever a time for an immediate exception, this would be it.

The HOA Board disagreed.

Opinion:  These are not normal times and granting this type of exception has little risk of setting a precedent outside of the time period of the current pandemic. This exception should be granted for the good of the overall community that this worker serves in his/her capacity as an essential worker. To guard against any concern about setting negative precedent, the Board of Directors could issue a letter to the owner or distribute a community-wide policy stating that it will make limited exceptions to certain rules as a result of and during the COVID-19 pandemic. The Association needs to prioritize the health and safety of the family over the potential unattractiveness of an RV in the driveway.

*The information contained in this statement is the opinion of only one attorney. You should consult your attorney or other association professional before taking action or failing to take action regarding a similar situation.

Download Scenario PDF

Opinion On Transition

The Scenario Is:

A condominium association with a declarant-controlled board of directors has recently crossed the threshold of having 75% of its units sold to non-declarant owners. Ordinarily, the declarant would hold a meeting to transfer control of the association to the non-declarant owners, but it has concerns about doing so during the COVID-19 pandemic. Should it proceed with a transition meeting via remote means or should it wait to postpone the meeting and hold a traditional meeting once the government lifts or relaxes its COVID-19 restrictions?

One Attorney’s Opinion: In common interest communities that are subject to WUCIOA, Declarants should explore the feasibility of holding a remote meeting to transfer control of the association to the unit owners within the timeframe required by statute and should do so if reasonably possible.

Common interest communities formed after July 1, 2018 are subject to the Washington Uniform Common Interest Ownership Act, Chapter 64.90 RCW (“WUCIOA”). The statute requires a declarant to hold a transition meeting to turn control of the association over non-declarant unit owners.

RCW 64.90.415(4) provides two mutually exclusive events that trigger a declarant’s obligation to hold a transition meeting. If the declaration provides for a period of declarant control, then the declarant must hold a transition meeting within 30 days after declarant control ends (the declaration and RCW 64.90.415(2) provide the criteria for ending the period of declarant control). If the declaration does not provide for a period of declarant control, then the declarant must hold a transition meeting within 60 days after the conveyance of 75% of units to non-declarant owners.

The statute does not allow any exceptions to the requirement of a transition meeting or its timing.

WUCIOA allows an association’s meetings to be conducted by remote means, so long as such meetings are not prohibited by the association’s governing documents and the following standards are met:

  1.  The meeting notice states the conferencing process to be used and provides information explaining how unit owners may participate in the conference directly or by meeting at a central location or conference connection; and
  2.  The process provides all unit owners the opportunity to hear or perceive the discussion and to comment as provided in [RCW 64.90.445(e)].

A remote transition meeting may not be possible in every community, for example if the association’s governing documents explicitly prohibit such meetings. Another potential difficulty is that RCW 64.90.415(4) envisions that the owner-controlled board will be elected “at the transition meeting.” One way to cast votes for an election at a remote meeting is a roll call vote – that is have the board or the manager call on each unit and have each unit owner identify herself/himself and verbally cast a vote. In very large communities, this may not be a reasonable method for collecting votes. Some communities may be able to organize votes using proxies or absentee ballots, as authorized by RCW 64.90.455. Associations should work with their managers and legal counsel to review governing documents and available resources and determine the best way carry out a vote at a remote meeting.

If a declarant fails to hold a transition meeting within the time prescribed by WUCIOA, it has violated the statute. If the association or any unit owners are damaged as a result of that violation, the declarant may be liable. Declarants should protect themselves and their communities by working to hold remote meetings to transfer control of the association to the unit owners.

*The information contained in this statement is the opinion of only one attorney. You should consult your attorney or other association professional before taking action or failing to take action regarding a similar situation.

Download Scenario PDF

Webinars:

Other Resources:

WA State
COVID-19 Resources

WA State Updates:

Governor’s Updates:

WA State Governor's Office
Protection For High-Risk Workers Proclaimation
Washington's Phased Approach - Reopening Business & Modifying Physical Distancing Measures - Thumbnail Image - click for larger image
WA State Phased Approach Reopening Information

WA State’s Reopening Phased Approach Chart


Phase 1:

Phase 2:

Resources:

Legal Resources
WA Internet Resources

Assistance:

Food Assistance

How To Help:

CAI COVID-19 Resources

  • Barker Martin
  • Trestle Community Management - Two words describe Trestle: Professional. Execution. - Community Management Services - (425) 454-6404 - www.trestlecm.com
  • Charter Construction
  • The Copeland Group, LLC
  • Rafel Law Group
  • Condominium Law Group, PLLC - General Counsel & Collection Services - Partners Ken Harer & Valerie Oman - Phone: (206) 633-1520 Website: www.condolaw.net
  • Newman & Associates Ad 2020
  • HUB - HOA and Condo Solutions
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Chapter Magazine

Community Associations Journal - May 2020 Issue - Cover

Calendar

May 2020

SunMonTueWedThuFriSat
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  • Business Partners Comm Mtg
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  • Communications Comm Mtg
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  • Education Comm Mtg - WSCAI
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  • M4MD Comm Mtg
  • Board Meeting
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  • Membership Committee Meeting
  • Community Outreach Committee Mtg - WSCAI
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  • Market Expansion Comm Mtg
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  • Chapter Mixer / Virtual Happy Hour
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