Great news for Washington Condominium owners! Filmore LLP v. Unit Owners Association of Centre Pointe Condominium, was accepted for review by the Washington Supreme Court yesterday! Our own Dan Zimberoff authored the amicus curiae brief on behalf of the Washington State Community Association Institute. Supplemental briefs of the parties will be due in early April and the court will set a hearing after that. A short synopsis of the devastating opinion from our prior blog is below.

The Division One Court of Appeals in Filmore, at 333 P.3d 498, Wash. App. Div. 1 (2014), ruled that at least 90% voter approval is required for New Act condominiums to adopt an amendment that imposes rental caps.

In Filmore, the court was faced with the issue of whether a rental cap amendment must have at least 90% or only 67% voter approval to be properly adopted. The court focused on the language in the Condo Act at RCW 64.34.264(4) that requires 90% voter approval if the amendment restricts "the uses to which any unit is restricted." The association in Filmore argued that "use" as it is used in RCW 64.34.264(4) should be interpreted narrowly to mean whether the unit is for commercial or residential use and therefore, should not apply to rental restrictions because restriction does not modify the residential nature of the unit. The unit owner in Filmore argued for a more general definition of use - basically any common "use" of a unit, which would include rental restriction.

The court sided with the unit owner, ruling that a rental restriction is a "use" restriction under RCW 64.34.264(4) and therefore at least 90% voter approval (plus the approval of all units "particularly affected") is required. Because the association did not obtain the required 90% approval, the court deemed the amendment "void ab initio."

The Filmore decision left numerous unanswered questions such as the effect of the language requiring approval of "each unit particularly affected," which could require 100% approval in effect. The Filmore court also failed to address whether leasing-related requirements other than pure rental caps constitute use restrictions. The Filmore court also failed to address whether rental adopted more than one year ago would be "void," although subsequent case law seems to indicate that RCW 64.34.264(2), the one-year statute of limitation, would not save these amendments.

Barker Martin hopes that the Supreme Court's acceptance of Filmore is a first step to overturning its' decision or at least limiting its reach to rental caps and other clearly defined use restrictions.