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DavidD31 (Washington)
Posts: 18
Posted:
In our HOA CCR's we have a statute that says that if the member is not in "Good Standing" with their assessments, their vote can not be counted when voting on motions. However, I'm seeing in the new WUCIOA Law in Washington State (RCW 64.90.405 (2)(x)(ii)) that is no longer the case? Do I understand this correctly??

https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.405

"(2) Except as provided otherwise in subsection (4) of this section and subject to the provisions of the declaration, the association may:

(x) Suspend any right or privilege of a unit owner who fails to pay an assessment, but may not:

(ii) Suspend a unit owner's right to vote;"

I would like some clarification on this or is it just plain text and says what it says? Hard to believe that someone can be allowed to vote if they are 1 to several months behind on their assessments.

Thank you.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Without reading the whole statute, I think it is pretty clear.

The member, regardless of standing, may cast votes for Directors and amendments to governing documents.
However, what you cited does refer to subsection (4).

That should be read in context to obtain a full understanding.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By DavidD31 on 07/08/2024 4:10 PM
In our HOA CCR's we have a statute that says that if the member is not in "Good Standing" with their assessments, their vote can not be counted when voting on motions. However, I'm seeing in the new WUCIOA Law in Washington State (RCW 64.90.405 (2)(x)(ii)) that is no longer the case?
In another thread you said your HOA was created in 2017. Did your HOA amend its Declaration to make it subject to Washington statute RCW 64.90, pursuant to RCW 64.90.095? If not, then I do not think the section you quoted above applies to your HOA.
DavidD31 (Washington)
Posts: 18
Posted:
From my understanding by a Seattle HOA Attorney, there are 5 sections of WUCIOA (RCW 64.90) that apply to all Common Interest Communities no matter when they were formed. Those are 64.90.095, 64.90.100, 64.90.405 (which is the one I questioned about), 64.90.525, and 64.90.545. However, I also found out today the as of July 1, 2028, WUCIOA will be law for ALL CIC's with limited exceptions. So we may wind up going that way anyway.

https://www.wucioa.info/
DavidD31 (Washington)
Posts: 18
Posted:
From my understanding by a Seattle HOA Attorney, there are 5 sections of WUCIOA (RCW 64.90) that apply to all Common Interest Communities no matter when they were formed. Those are 64.90.095, 64.90.100, 64.90.405 (which is the one I questioned about), 64.90.525, and 64.90.545. However, I also found out today the as of July 1, 2028, WUCIOA will be law for ALL CIC's with limited exceptions. So we may wind up going that way anyway.

https://www.wucioa.info/
DavidD31 (Washington)
Posts: 18
Posted:
From my understanding by a Seattle HOA Attorney, there are 5 sections of WUCIOA (RCW 64.90) that apply to all Common Interest Communities no matter when they were formed. Those are 64.90.095, 64.90.100, 64.90.405 (which is the one I questioned about), 64.90.525, and 64.90.545. However, I also found out today the as of July 1, 2028, WUCIOA will be law for ALL CIC's with limited exceptions. So we may wind up going that way anyway.

https://www.wucioa.info/
DavidD31 (Washington)
Posts: 18
Posted:
From my understanding by a Seattle HOA Attorney, there are 5 sections of WUCIOA (RCW 64.90) that apply to all Common Interest Communities no matter when they were formed. Those are 64.90.095, 64.90.100, 64.90.405 (which is the one I questioned about), 64.90.525, and 64.90.545. However, I also found out today the as of July 1, 2028, WUCIOA will be law for ALL CIC's with limited exceptions. So we may wind up going that way anyway.

https://www.wucioa.info/
TimB4 (Tennessee)
Posts: 21,059
Posted:
Keep in mind that that statute goes into effect in stages (see ENGROSSED SUBSTITUTE SENATE BILL 5796).

Again, I have not read the bill fully. Therefore, until fully enacted (and unless changed by future legislatures), sections of your governing documents may still apply that seem in conflict with the new statute.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By DavidD31 on 07/08/2024 4:10 PM
... snip...
https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.405

"(2) Except as provided otherwise in subsection (4) of this section and subject to the provisions of the declaration, the association may:

(x) Suspend any right or privilege of a unit owner who fails to pay an assessment, but may not:

(ii) Suspend a unit owner's right to vote;"

... snip...

The part in bold caught my eye. This sounds to me like the law is deferring to the declaration on these items, which means the declaration can deny voting privileges without violating the new law. But without seeing subsection (4), I'm not going out on a limb on this.

I suggest looking for commentary from Washington lawyers on the new law and see if they address this. If this is a change, people will be talking about it and informing their clients.
CathyA3 (Ohio)
Posts: 6,299
Posted:
I was thinking some more about the loss of voting privileges.

My community's declaration suspends voting rights in only one circumstance: the homeowner is delinquent in paying assessments. In my state, fines, late fees and other charges are all considered "assessments". So if you owe the association $.01, you are not in good standing. The declaration also states that the board "shall" suspend voting privileges - so the board has no discretion in this matter. As far as I know, my community is not unusual in this respect.

What I think is odd is the angst over the vote. A person who is not paying assessments is facing a much more serious consequence, namely foreclosure. They also may face loss of other privileges such as use of the amenities. But these lesser consequences pale in comparison with loss of one's home and the consequent damage to one's financial health, including the very real possibility of homelessness for some. For many, the bulk of their net worth is in their homes. Loss of the home means losing the foundation of their financial stability. This is a blow that a person may not easily recover from. This is one reason courts can be reluctant to find in favor of an association during the foreclosure process.

So I don't get it. To me, the loss of the vote is a gnat's bite compared to the potential consequences of losing one's home. Foreclosure is also not consequence-free for the association, since many associations end up writing off part or all of the money that the delinquent owner owes. The rest of the membership will have to make the association whole, or cut spending.

One situation where the loss of one vote will matter is if an association were trying to approve an amendment to the CC&Rs that requires unanimous approval. For example, my community would be unable to approve such an amendment while we have any delinquencies at all. Such amendments are pretty uncommon. But this could be a reason to change the law to allow delinquent owners to vote - without the change, the delinquent owners could hold the community hostage if the amendment is badly needed.

I remain puzzled.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By CathyA3 on 07/09/2024 4:46 AM
Posted By DavidD31 on 07/08/2024 4:10 PM
... snip...
https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.405

"(2) Except as provided otherwise in subsection (4) of this section and subject to the provisions of the declaration, the association may:

(x) Suspend any right or privilege of a unit owner who fails to pay an assessment, but may not:

(ii) Suspend a unit owner's right to vote;"

... snip...


The part in bold caught my eye. This sounds to me like the law is deferring to the declaration on these items, which means the declaration can deny voting privileges without violating the new law.
I missed this the first time around. I was reviewing everything and landed where CathyA3 landed before I saw her post.

I agree with CathyA3.

Section 4 involves a HOA borrowing and is n/a here.
ElleN (Idaho)
Posts: 4,420
Posted:
Just saying --
Quote:
Posted By DavidD31 on 07/09/2024 12:51 AM
From my understanding by a Seattle HOA Attorney, there are 5 sections of WUCIOA (RCW 64.90) that apply to all Common Interest Communities no matter when they were formed. Those are 64.90.095, 64.90.100, 64.90.405 (which is the one I questioned about), 64.90.525, and 64.90.545.
I expect this is a misreading of 64.90.080. See https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.080. Relevant excerpt:

Except for a nonresidential common interest community described in RCW 64.90.100, RCW 64.90.095, 64.90.405(1) (b) and (c), 64.90.525 and 64.90.545 apply, and any inconsistent provisions of chapter 58.19, 64.32, 64.34, or 64.38 RCW do not apply, to a common interest community created in this state before July 1, 2018.

I added bolding above to help with read-ability.

The cited sections 64.90.405(1) (b) and (c) have nothing to do with the OP's query.

For a layperson or non-specialized attorney, the above is not an easy parse.

If someone else wants to try to sieve through 64.90 and try to prove or disprove my belief that 64.90.405 (2) does not currently apply to the OP's 2017 HOA, then I welcome it.

I certainly do not expect a volunteer board to be capable of parsing 64.90.

Quote:
Posted By DavidD31 on 07/09/2024 12:51 AM
However, I also found out today the as of July 1, 2028, WUCIOA will be law for ALL CIC's with limited exceptions.
Because this is four years away, I will not speak to this at this time.
KerryL1 (California)
Posts: 14,550
Posted:
Are you on the Board, DavidD? If so, urge the Board to consult with your HOA Gen. Counsel.

In Calif., by the way, every owner may vote no matter how non-compliant they are about anything.Can't recall when this was enacted by the state but, I think w/in the past 3 years.
DavidD31 (Washington)
Posts: 18
Posted:
Quote:
Posted By KerryL1 on 07/09/2024 7:06 PM
Are you on the Board, DavidD? If so, urge the Board to consult with your HOA Gen. Counsel.

In Calif., by the way, every owner may vote no matter how non-compliant they are about anything.Can't recall when this was enacted by the state but, I think w/in the past 3 years.



Yes, I'm back on the board. My first posts about laws regarding raising assessments were when I was President and had consulted an Attorney. A motion was made to remove me for that. I resigned before that happened due to heart issues. I've had 2 surgeries and am better. I recently was elected back on the board as VP and it is an entirely different board except for myself. More professional I might add.
KerryL1 (California)
Posts: 14,550
Posted:
Kudos for your willingness to serve your community, David, and glad you're doing better.. A director here had a stroke mid-term, but 1-1/2 years later has come back after therapy, etc. (right side paralysis) and is doing great!
KerryL1 (California)
Posts: 14,550
Posted:
Kudos for your willingness to serve your community, David, and glad you're doing better.. A director here had a stroke mid-term, but 1-1/2 years later has come back after therapy, etc. (right side paralysis) and is doing great!

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