Bilanko is the most recent addition to the ongoing saga in Washington law and the enforceability of condominium declaration amendments under the WCA (RCW 64.34). Bilanko involved a homeowner challenge to the enforceability of a declaration amendment that restricted unit rentals. In a unanimous decision, the Washington Supreme Court held the unit owner's challenge untimely and time barred under RCW 64.34.264(2), which requires any challenge to the validity of an amendment to be brought within one year of the amendment's recording. The Washington Supreme Court did not explicitly overturn Fillmore or Club Envy, but certainly limited the application of those decisions to many existing declaration amendments. At first glance, the case may appear to validate amendments recorded at least one year ago absent fraud or wrong doing. Unfortunately, as is often the case (pun intended), the Bilanko decision isn't quite that straight forward. Associations who have recorded statements or included language in resale certificates nullifying or declining to enforce prior amendments as a result of Filmore, however, should definitely revisit the issue in light of this case. read more

Many in the homebuilding industry still believe in the notion of caveat emptor or "buyer beware." Unfortunately, many home buyers aren't aware of what they are purchasing. This can be particularly true with first time buyers who are understandably anxious and excited to join the ranks of home-ownership. When it comes to new home warranties, many builders go to great lengths to disclaim limited protections that purchasers might otherwise enjoy. We often see builders offering "Express Warranties" that are more about disclaiming liability than warranting anything. We often hear that a one or two year warranty coupled with a disclaimer of any and all other liability warranty represents the "industry standard." If that truly is the industry standard then the industry is wrong. Most small electronics come with a better warranty than this. read more

As mentioned in last week's submission, associations are frequently confronted with whether something must be disclosed, could be disclosed or should be disclosed. Some questions are easy. For example an Oregon Condo must disclose to prospective purchases, the existence of car charging stations and the owner's related responsibilities. That's a black-and-white question and answer, but consider the following hypothetical situation: XYZ Association received a report recommending full replacement of the roof but doesn't yet know how much it will cost. They are getting currently obtaining bids for the work. What must the Association disclose as part of a resale certificate or other disclosure? read more

It is a common misconception that community associations assume complete and exclusive authority over all people, property, actions and grievances within their community. Sometimes it's an owner misconception that their clogged sink or running toilet is an association issue. Sometimes it's the pure neighbor vs. neighbor dispute. But sometimes, it can be more serious. I was reminded of this recently when (allegedly) one unit owner intentionally threw a rock threw their neighbor's window while verbally harassing the occupants. Local law enforcement was called and decided… it was an association issue. Think about that for a minute. There was probably, almost certainly, a violation of the Association's governing documents but there was also a crime committed. A crime is no less a crime when committed within a community association and those best trained and suited to address such activity are law enforcement – not board members or homeowners and not the association manager. It's important that community association volunteers and service providers remain cognizant of this fact for the safety of everyone involved. Safety is of paramount importance but it's also important to consider the liability you assume if you do take on the role of "law enforcement." As legal counsel, we often help Associations evaluate their authority, options and obligations in difficult situations and, when needed, we're here to be their advocate. read more

Typically, in order to trigger a Director and Officer's (D&O) coverage, a claim must be "made" within the policy period. This is commonly referred to as a "claims made" policy. Many D&O policies also require that the claim be reported during the policy period. These are commonly referred to as "claims made and reported" policies. read more