Mandatory membership in HOA?

Started by CharlesF7 • 5 replies • 1515 views

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CharlesF7 (Washington)
Posts: 3

Posted:

Let me start by saying that I am not seeking a legal opinion. That has already been done and attorneys say both sides have a valid position just depends which side asks. The issue is whether membership is mandatory or voluntary in our homeowner's association in the state of Washington. Thoughts and possibly similar experiences would be appreciated.

Our CC&Rs had a sunset clause and expired 25 years ago. We are a diverse collection of single family dwellings who have road maintenance agreements (the roads are common areas) and a beach area with limited amenities. Nowhere in the original plat document, the articles of incorporation or the bylaws is membership required.

What is included on the plat: A CERTIFICATE OF MEMBERSHIP in (the) Corporation, a Washington non-profit corporation is included with each lot sold.

From the AOI: The corporation shall not have and shall not issue corporate stock but shall issue membership certificates, which certificates shall be assignable only under such provisions, rules and regulations as may be prescribed by the By-Laws of the corporation. Membership shall not be bought or sold separately but shall run with the land, and the sale of any lot shall automatically constitute a sale of the membership appurtenant thereto.

The bylaws only address certificates of membership stating that each lot in the estate is entitled to one as long as their dues are paid.

Some attorneys have questioned why we are even a HOA and whether authority exists to lien property for non-payment of dues. The question is: are we a mandatory HOA and if not, can the AOI and bylaws be used to place conditions on lots in the estate and require membership in the association? The authority to do this was not granted in the original plat.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By CharlesF7 on 06/11/2013 3:25 PM

Let me start by saying that I am not seeking a legal opinion. That has already been done and attorneys say both sides have a valid position just depends which side asks.

The question is: are we a mandatory HOA and if not, can the AOI and bylaws be used to place conditions on lots in the estate and require membership in the association? The authority to do this was not granted in the original plat.

The answer will be within your governing documents.
It's difficult to offer an opinion without seeing those documents.

Since the legal opinions differ, I suspect that members of this forum would also have differing opinions. Your legal opinions should carry more weight than any response you will get from this forum as the legal opinions were likely based on having full access to the documents and an understanding of applicable Washington State laws.

Mind you, the differing of legal opinions might not be based on who asked but what was asked. Asking, can we require mandatory membership? vs. do our current documents authorize and mandatory membership? could give different answers.

CharlesF7 (Washington)
Posts: 3

Posted:

Tim,

Thanks for your reply and you have hit it exactly, it depends on the question asked and you have correctly stated how both sides have asked their question and therefore gotten different answers. So the key here is that the two sides cannot agree on the right question to ask.

What the 3 governing documents say on this is included in my write-up above. I simply did a copy and paste from those documents.

It is a longshot but my hope is someone has experience in this area so that a better question can be asked.

MatthewW4 (Arizona)
Posts: 500

Posted:

Charles,

Common practice is to record some sort of declaration that binds the property and its owner to an association. This gives the prospective buyer notice that there are restrictions and an association.

The language you quoted from the articles of incorporation is pretty close the right words but in the wrong document. It would be a stretch to say that a buyer has notice of a mandatory association because of language in the AOI without similar language in the declaration attached to the property itself.

If I incorporated a nudist colony I do not think that I could require you to be a member just because my articles of incorporation state that all residents must join. There has to be some evidence of an agreement somewhere else; I cannot unilaterally force membership upon people.

Even the reference to the bylaws is not sufficient to give a buyer notice of the mandatory association. The bylaws are just the rules for how the corporation will operate; they do not bind a buyer to join the association.

SharonH9 (Virginia)
Posts: 216

Posted:

Quote:

Posted By CharlesF7 on 06/11/2013 3:25 PM

Our CC&Rs had a sunset clause and expired 25 years ago. We are a diverse collection of single family dwellings who have road maintenance agreements (the roads are common areas) and a beach area with limited amenities. Nowhere in the original plat document, the articles of incorporation or the bylaws is membership required.

You might be interested in reading the Iowa case called Chipman vs. Carney. I think it has some applicability in your situation except different state of course.

http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20120229/1-867.pdf

CharlesF7 (Washington)
Posts: 3

Posted:

Wow! It amazes me how one can take a relatively obscure question and get such great thought provoking feedback in such a short period of time. The internet and search engines have revolutionized learning.

Thanks Matthew and Sharon for feedback on a critical point. How does one establish a right to control land once the CCRs expire? It is nice to be able to see case law on this even though from another state. Iowa has an automatic expiration to CCRs but provides a mechanism to resinstate them. WA uses contract law to decide under what conditions new authority, or in my case expired authority may be attached to land. I am not an attorney and when I attempt to read contract law it makes my brain ache.

FYI, our association went through this issue last year but for various reasons it was never resolved in court. We are at relative peace now by removing and electing new board members. The new board seems committed to healing our wounds so hopefully this issue will remain dormant but you never know.

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