ABANDONMENT OF ASSOCIATION DECLARATION PROVISIONS DUE TO LACK OF ENFORCEMENT – BE CONSISTENT OR LOSE THE ABILITY TO CONTROL THE ASSOCIATION’S ACTIVITIES.

by | Apr 10, 2016 | Condominium Law

Declarations Provisions: The Central Governing Document

The Declaration of Covenants, Conditions, and Restrictions of a condominium association or a homeowners association (“Declaration”) is the central governing document of condominium associations and homeowners associations.  Consistent with the appropriate governing statute, whether the Washington Condominium Act, RCW 64.34 et seq., the Horizontal Property Regimes Act, RCW 64.32 et seq., or The Homeowners Association Act, RCW 64.38 et seq., the Declaration of an association dictates everything from identification of common areas to the procedural aspects of building repairs.  The Declaration also empowers associations’ Boards of Directors to enforce the Declaration provisions against association members who violate its provisions.

Enforcing Your Declaration Provisions

In order to enforce Declaration provisions against association members, the association’s Board of Directors, and its agents, such as community association managers and Architectural Control Committee members, must regularly monitor the actions of its members and systematically process complaints from its membership.  When a covenant has been abandoned, it will not be enforced.   Mt. Baker Park Club, Inc. v. Colcock, 45 Wn.2d 467, 471, 275 P.2d 733 (1954) (citing Ronberg v. Smith, 132 Wn. 345, 232 P. 283 (1925)); see also Tindolph v. Schoenfeld Bros., Inc., 157 Wn. 605, 610, 289 P. 530 (1930).  A covenant is abandoned when it is habitually and substantially violated, and nothing is done in response. Colcock, 45 Wn.2d at 471, 275 P.2d 733;  Mountain Park Homeowners Ass’n, Inc. v. Tydings, 72 Wn. App. 139, 147, 864 P.2d 392, 396-97 (1993) aff’d, 125 Wn.2d 337, 883 P.2d 1383 (1994).  For example, if the Declaration requires the submission of an application for the improvement of an individual unit or property and approval of that application prior to work commencing on the project, undertaking that project without obtaining prior approval is a violation of the declaration provisions.

Abandonment of Your Declaration Provisions

If the association fails to uniformly require such prior approval, the requirement of prior approval contained in the Declaration may be abandoned if a court determines that the Declaration provision was habitually and substantially violated, and nothing was done in response.  In considering whether a covenant has been abandoned, a court looks at the relative number of subdivision lots or condominium units violating the covenant and the extent of the violations. See, e.g., White v. Wilhelm, 34 Wn. App. 763, 769–70, 665 P.2d 407 (1983); Mt. Baker Park Club, Inc. v. Colcock, 45 Wn.2d 467, 471–72, 275 P.2d 733 (1954).  It is critical for association Boards to be consistent in their enforcement policies and to document the process by which they undertake their enforcement activities.  If these policies are followed, when a noncompliant member is cited for his/her violation, he or she cannot prevail on a claimed defense of abandonment of enforcement of Declaration covenants.