Navigating the applicability of the various Washington association statutes and their applicability can be a challenge. To help determine which law applies to your association, you have to answer two questions regarding your association: When was my association’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) recorded with my county’s Recorder’s Department or Auditor’s Department? and what type of association is it?
To determine when your association was created, you can view your association’s CC&Rs on the County’s Recorder’s Department’s or Auditor’s Department’s website, if they provide such access, and you can review the corporate formation records through the Secretary of State business records. For Washington state, you can visit the Secretary of State’s website here and do a business search for your association.
There are two distinct types[1] of associations recognized by Washington law: condominium associations and homeowners associations. 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 Revised Code of Washington (“RCW”) 64.32 et seq., RCW 64.34 et seq. (described in detail below), or RCW 64.90 et seq. A homeowners association is a non-profit corporation, in which each member owns residential property within the association’s jurisdiction, as described in the governing documents. RCW 64.38.010(11).
All Associations Formed Before July 1, 1990
If your association was formed prior to July 1, 1990, then the applicable Washington statutes are found in Chapter 64.32 the “Horizontal Property Regimes Act (Condominiums)”. This chapter applies to all owners of real property who duly execute and record a declaration. RCW 64.32.020.
It is important to note that all associations that are registered as non-profit corporations are also governed by RCW 24.03 the “Washington Nonprofit Corporation Act”, or RCW 24.06, the “Nonprofit Miscellaneous and Mutual Corporations Act”. This is important because Chapter 64.32 is procedurally sparse. As such, if an association runs into an issue that is not addressed by RCW 64.32 and it is registered as a non-profit corporation, then it can look to RCW 24.03 or RCW 24.06, respectively, for relevant law and information.
Condominium Associations Formed After July 1, 1990 but before July 1, 2018
If your association was formed after July 1, 1990, but before July 1, 2018, and is a condominium association, then the applicable Washington statutes are found in RCW 64.34, the “Condominium Act”. This act applies to all condominiums created after July 1, 1990. RCW 64.34.010(1). However, certain sections[2] also apply to condominiums created before July 1, 1990, but only with respect to events and circumstances occurring after July 1, 1990, and as long as these sections do not invalidate or supersede existing provisions of the association’s declaration. If these certain sections do invalidate or supersede, the association may still allow them to apply but the association will have to amend its declaration, and follow the procedures outlined in chapter 64.32 to amend. RCW 64.30.010(2); see also Keller v. Sixty-01 Associates of Apartment Owners, 127 Wn. App. 614, 624, 112 P.3d 544, 548 (2005).
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, titled “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 Chapter 64.90, the “Washington Uniform Common Interest Ownership Act”. Similar to the Condominium Act, RCW 64.34, this chapter will also apply to associations formed prior to July 1, 2018, but only to events and circumstances occurring on or after July 1, 2018 and as long as they don’t invalidate existing provisions of the association’s declaration. RCW 64.90.080. One exception to this act is that it does not apply to public offerings for condominiums. RCW 64.90.090. The Condominium act still governs these situations.
Priority – Association Chapters
The summation of the information above is illustrated in the flow chart below:
*The applicability of this chapter is dependent on its consistency with the declaration. If the relevant chapter statute is inconsistent with the declaration, then the chapter does not apply unless the declaration is amended.
The Precedence of Your Association’s Governing Documents
The priority of the law with regards to the governing statutes and the governing documents of your association is as follows: Washington law, both common law (“case law”) and applicable statutes supersedes any of your governing documents including, but not limited to, the declaration, bylaws, and any rules and regulations promulgated by the association. Next, the declaration, and the covenants contained in the declaration, supersede any inconsistent bylaw provision and/or any inconsistent rules and regulations created by the association. The bylaws and rules and regulations will still have legal effect, i.e. can be binding on a party, as long as they are consistent with both the association’s declaration and applicable Washington law.
Therefore, the precedence of law on this topic is: Washington Law > Declaration > Bylaws/Rules and Regulations.
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 or by your neighbors is key to properly managing disputes within your community. Unfortunately, as you can see, above, it is sometimes not easy to detangle the overlaps and ambiguities created by imperfect drafting of both the laws and the governing documents. 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.
[1] There are other types of associations, e.g. co-operative apartments, but these will not be discussed in this article. However, the Horizontal Property Regimes Act, and Washington Common Interest Community Act, discussed later, do apply to all associations irrespective of type.
[2] RCW 64.34.040 (separate titles and taxation), RCW 64.34.050 (applicability of local ordinances, regulations, and building codes), RCW 64.34.060 (condemnation), RCW 64.34.208 (construction and validity of declaration and bylaws), RCW 64.34.268 (1) through (7) and (10) (termination of condominium), RCW 64.34.212 (description of units), RCW 64.34.304(1) (a) through (f) and (k) through (t) (powers of unit owners’ association), RCW 64.34.308(1) (board of directors and officers), RCW 64.34.340 (voting—proxies), RCW 64.34.344 (tort and contract liability), RCW 64.34.354 (notification on sale of unit), RCW 64.34.360(3) (common expenses—assessments), RCW 64.34.364 (lien for assessments), RCW 64.34.372 (association records), RCW 64.34.425 (resales of units), RCW 64.34.455 (effect of violation on rights of action; attorney’s fees), RCW 64.34.380 through 64.34.392 (reserve studies and accounts), and RCW 64.34.020 (definitions)
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