Homeowners’ Association (“HOA”) law is complex. Many homeowners have difficulty interpreting and understanding the laws and documents that apply to their HOA. Part of the difficulty of figuring out HOA law starts with determining which HOA law applies to you. There are five different revised code of Washington (“RCW”) statutes that could control your HOA. Depending on when the HOA was formed, multiple statutes may apply. The specific statutes that could apply are:
- 24.03A – Nonprofit Corporation Act
- 64.32 – Horizontal Property Regime Act (Condominiums)
- 64.34 – Condominium Act
- 64.38 – Homeowners’ Associations
- 64.90 – Washington Uniform Common Interest Ownership Act
Determining which HOA law applies to you is the first challenge. This blog is intended to help you narrow down which RCW dictates what you can do with your HOA.
Determine Your Association.
To help determine which law applies to your association, you must first answer two questions regarding your association:
- When were the association’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs“) recorded with the County Recorder’s Office?
To determine when your association was created, you can view your association’s CC&Rs on the website of the County Recorder’s Office or Auditor’s Office, if they provide such access. It is not uncommon for these offices to charge nominal fees for copies of the documents. Alternatively, you can review the corporate formation records through the Secretary of State business records, to find the date of formation.
Additionally, the HOA’s governing body (the board of directors) should have copies of CC&Rs on hand that can be provided to owners at request.
- What type of association is it?
This article discusses the two primary types of associations recognized by Washington law: condominium associations and homeowners associations, or HOA. Colloquially, both these types are referred to as associations. Other common interest communities will be discussed in later articles.
A condominium association is a non-profit corporation, in which members own portions of real property and the remainder is designated for common ownership; the Declaration, survey map, and plans have been recorded pursuant to RCW 64.32, or RCW 64.34, or RCW 64.90. In layman’s terms, condominiums can be thought of as traditional condos or apartments.
A homeowner’s association, or HOA, is where each member owns residential property within the association’s jurisdiction, as described in the governing documents, and is recorded under RCW 64.32, 64.38, or 64.90. As opposed to condominiums associations, HOAs are composed of owners who live in single-family homes, and which have common interests in real property in their HOA area.
It must be noted that most associations are registered as nonprofit corporations, governed by RCW 24.03A, or RCW 24.06, the “Nonprofit Miscellaneous and Mutual Corporations Act.” The statutes are important because RCW 64.32, RCW 64.34, and RCW 64.38 do not provide much procedural guidance for HOAs. If an association runs into an issue (typically with meeting or notice) that is not addressed in the association specific statutes, many associations can look to RCW 24.03A or RCW 24.06 for relevant law and information.
From here, having the information on the date of formation and type of association, you apply the following:
All Associations Formed Before July 1, 1990.
If your association – condominium or HOA – was formed prior to July 1, 1990, then the Horizontal Property Regimes Act (Condominiums), RCW 64.32, will apply. This RCW applies to all owners of real property who duly execute and record a declaration. RCW 64.32.020.
Condominium Associations Formed After July 1, 1990, but before July 1, 2018.
If your association is a condominium, and was formed after July 1, 1990, but before July 1, 2018, then the applicable statutes are found in RCW 64.34, the “Condominium Act.” RCW 64.34.010(1).
Some sections of RCW 64.34 also apply to condominiums formed before July 1, 1990, but only with respect to certain events and circumstances, and as long as these sections do not invalidate or supersede existing provisions of the association’s CC&Rs. To fully comprehend which provisions supersede others, legal counsel should be obtained. If these certain sections do invalidate, the association must amend its declaration for them to apply. RCW 64.34.010(2).
Homeowners’ Associations Formed before July 1, 2018
If your association was formed before July 1, 2018 and is a homeowners’ association, then the applicable Washington statutes are found in RCW 64.38, “Homeowners’ Associations.”
All Associations Formed After July 1, 2018
If your association was formed after July 1, 2018, then the applicable Washington statutes are found in the Washington Uniform Common Interest Ownership Act, RCW 64.90 (“UCIOA”). Similar to RCW 64.34, this RCW will also apply to specific events of the associations occurring after July 1, 2018 as long as they don’t invalidate existing provisions of the association’s declaration. RCW 64.90.080. Be warned, there are exceptions to certain transactions and occurrences in UCIOA. For instance, UCIOA does not apply to public offerings for condominiums. RCW 64.90.090. The Condominium act still governs these situations.
Conclusion
Knowing which laws apply to your association and which provisions of your governing documents take priority in interpreting actions by the association’s board of directors, and is essential to properly managing disputes within your community. It is sometimes not easy to even detangle the overlapping applicability of various RCWS, and the ambiguity created by that overlap. Many times, the confusion in laws is layered over further inconsistencies created by imperfect drafting or a board of directors improperly amending and changing rules.
If you are not absolutely certain regarding which laws and/or rules apply to your situation, we recommend that you consult an experienced association attorney.
This blog is for educational purposes only and does not constitute legal advice. This article, or contacting Apex, does not in any way form an attorney-client relationship. Speak to a licensed attorney if you need help or advice in how to navigate the statutes surrounding associations. If you have any questions or would like to learn more, please contact Coleman Scroggins at Coleman@apexlg.com or visit our website. You may also like the following other articles: Can My HOA get Tax-Exemption from the IRS?