ESB 6744 -
By Representative Lantz
Strike everything after the enacting clause and insert the following:
"Sec. 1 RCW 64.38.005 and 1995 c 283 s 1 are each amended to read
as follows:
The intent of this chapter is to provide consistent laws regarding
the formation and legal administration of homeowners' associations.
Unless otherwise provided in this chapter, this chapter applies to all
homeowners' associations in the state, regardless of when the
declaration was recorded or the association was established.
NEW SECTION. Sec. 2 A new section is added to chapter 64.38 RCW
to read as follows:
An obligation of good faith is imposed in the performance and
enforcement of all contracts and duties governed by this chapter and in
all other transactions involving declarants, associations, and their
members.
For purposes of this section, "good faith" means honesty in fact
and the observance of reasonable standards of fair dealing.
Sec. 3 RCW 64.38.010 and 1995 c 283 s 2 are each amended to read
as follows:
For purposes of this chapter:
(1) "Homeowners' association" or "association" means a corporation,
unincorporated association, or other legal entity, each member of which
is an owner of residential real property located within the
association's jurisdiction, as described in the governing documents,
and by virtue of membership ((or ownership of property)), the owner is
obligated to pay ((real property taxes, insurance premiums, maintenance
costs, or for improvement of real property other than that which is
owned by the member)) assessments pursuant to the governing documents.
"Homeowners' association" does not mean an association created under
chapter 64.32 or 64.34 RCW.
(2) "Governing documents" means the declaration, articles of
incorporation, bylaws, ((plat, declaration of covenants, conditions,
and restrictions,)) rules and regulations of the association, or other
written instrument by which the association has the authority to
exercise any of the powers provided for in this chapter or to manage,
maintain, or otherwise affect the property under its jurisdiction.
(3) "Board of directors" or "board" means the body, regardless of
name, with primary authority to manage the affairs of the association.
(4) "Common areas" means property owned, or otherwise maintained,
repaired or administered by the association.
(5) "Common expense" means the costs incurred by the association to
exercise any of the powers provided for in this chapter.
(6) "Residential real property" means any real property, the use of
which is limited by law, covenant or otherwise to primarily residential
or recreational purposes.
(7) "Assessment" means all sums chargeable by the association
against a lot including, without limitation:
(a) Regular and special assessments for common expenses, charges,
and fines imposed by the association;
(b) Interest and late charges on any delinquent account; and
(c) Costs of collection, including reasonable attorneys' fees,
incurred by the association in connection with the collection of an
owner's delinquent account.
This subsection (7) supersedes any inconsistent provision in the
governing documents.
(8) "Bylaws" means the code adopted for the regulation or
management of the internal affairs of the association, irrespective of
the designated name of that code. If an association is incorporated
under Title 23 or 24 RCW, "bylaws" means the definition assigned to
"bylaws" in the act pursuant to which the association is incorporated.
(9) "Community" means residential real property that is subject to
a declaration under which an association is established for governance
of the community.
(10) "Cooperative" means a community in which the residential real
property is owned by an association where each of those members is
entitled, by virtue of his or her ownership interest in the
association, to exclusive possession of a portion of the property.
(11) "Declarant" means any person who executes as a declarant a
declaration or succeeds to the rights of a declarant pursuant to an
instrument recorded in the real property records of every county in
which any portion of the community is located.
(12) "Declaration" means the declaration of covenants, conditions,
and restrictions or any other document, however denominated, that is
recorded in every county in which any portion of the community is
located and that provides for the establishment of an association to
govern the community. In the case of a cooperative, "declaration"
means the document or documents, however denominated, that create the
cooperative housing association that owns the residential real property
comprising the cooperative, whether or not the document or documents
are recorded.
(13) "Lot" means a physical portion of a community designated for
separate ownership or occupancy and designated for residential use, the
boundaries of which are described in the real property records of every
county in which any portion of the community is located. Within a
cooperative, "lot" means that portion of the community designated for
exclusive possession by a member of the cooperative's association.
"Lot" does not mean an apartment created under chapter 64.32 RCW or a
unit created under chapter 64.34 RCW.
(14) "Owner" means a declarant or other person who owns a lot, but
does not include a person who has an interest in a lot solely as
security for an obligation. Under a real estate contract, "owner"
means the vendee, not the vendor.
(15) "Person" means a natural person, corporation, partnership,
limited partnership, trust, government subdivision or agency, or other
legal entity.
(16) "Rules" means the rules, regulations, and policies,
irrespective of their designated name, that are adopted by the members
of the board of an association in accordance with the governing
documents and that supplement, but do not contradict or contravene, the
governing documents.
Sec. 4 RCW 64.38.015 and 1995 c 283 s 3 are each amended to read
as follows:
The membership of an association at all times shall consist
exclusively of the owners of all real property over which the
association has jurisdiction, both developed and undeveloped or, in the
case of a cooperative, the members of the association who by virtue of
their ownership interest in the association have exclusive possession
of a lot.
NEW SECTION. Sec. 5 A new section is added to chapter 64.38 RCW
to read as follows:
A board of directors may by majority vote incorporate an
unincorporated homeowners' association as a nonprofit corporation.
Sec. 6 RCW 64.38.030 and 1995 c 283 s 6 are each amended to read
as follows:
Unless provided for in the ((governing documents)) declaration, the
bylaws of the association ((shall)) must contain provisions that are
consistent with this chapter and provide for:
(1) The number, qualifications, powers and duties, terms of office,
and manner of electing and removing the board of directors and officers
of the association and filling vacancies;
(2) Election by the board of directors of the officers of the
association as the bylaws specify;
(3) Which, if any, of its powers the board of directors or officers
of the association may delegate to other persons or to a managing
agent;
(4) Which of its officers may prepare, execute, certify, and record
amendments to the governing documents on behalf of the association;
(5) The method of amending the bylaws; and
(6) ((Subject to the provisions of the governing documents,)) Any
other matters the association deems necessary and appropriate.
NEW SECTION. Sec. 7 A new section is added to chapter 64.38 RCW
to read as follows:
(1) Except as provided under subsection (2) of this section, a
seller must furnish to a purchaser before the execution of any contract
for sale of residential real property in which the lot is subject to
this chapter the following notice:
"BY PURCHASING THE RESIDENTIAL PROPERTY THAT IS THE SUBJECT OF THIS
AGREEMENT, YOU WILL BECOME A MEMBER OF A HOMEOWNERS' ASSOCIATION THAT
GOVERNS THE COMMUNITY IN WHICH THE PROPERTY IS LOCATED. THE
ASSOCIATION MAY MAINTAIN AND REPAIR COMMON AREAS, RESTRICT THE USE OF
YOUR PROPERTY, COLLECT DUES, AND APPROVE OR DISAPPROVE BUILDING PLANS."
(2) The notice is not required in real property transfers that
occur between commercial buyers and sellers or those transfers listed
in RCW 64.06.010.
NEW SECTION. Sec. 8 A new section is added to chapter 64.38 RCW
to read as follows:
(1) Within thirty days after adoption by the board of directors of
any proposed regular or special budget of the association, the board
shall set a date for a meeting of the owners to consider adoption of
the budget no less than ten and no more than sixty days after the
mailing of the summary of the proposed regular or special budget.
Notwithstanding any contrary provision in the governing documents, the
board must allow members to vote on the issue of ratifying the budget
either by mail-in ballot or at the meeting, in person or by proxy.
Unless the proposed budget is rejected at that meeting by a majority of
all the votes in the association, or any larger percentage specified in
the governing documents, the proposed budget is ratified and approved
whether or not there is a quorum at the meeting. If the proposed
budget is rejected or the required notice is not provided, the periodic
budget last adopted by the owners shall be continued until the owners
adopt a subsequent budget proposed by the board of directors.
(2) This section applies retroactively to any governing documents
in effect on the effective date of this section.
(3) This section supersedes any provisions of the governing
documents that are inconsistent with this section. All such
inconsistent provisions of the governing documents are void and
unenforceable.
NEW SECTION. Sec. 9 A new section is added to chapter 64.38 RCW
to read as follows:
For declarations that exist before the effective date of this
section:
(1) If a declaration requires more than seventy-five percent of the
votes in the association to approve any amendment to the declaration,
the association shall, if so directed by owners holding at least sixty-seven percent of the votes in the association, bring an action in
superior court for the county in which any portion of the real property
subject to the declaration is located, to reduce the percentage of
votes required to amend the declaration. The owners' decision to bring
an action may, notwithstanding any provision to the contrary in the
declaration, be made by votes cast at a meeting of the association duly
called or by written consent, or by both. The action shall be an in
rem declaratory judgment action whose title shall be the description of
the property subject to the declaration.
(2) If the court finds that the percentage of votes set forth in
the declaration is an unreasonable burden on the ability of the owners
to amend the declaration and of the association to administer the
property under its jurisdiction, the court shall enter an order
striking the percentage of votes from the declaration and substituting
the percentage of votes that the court determines to be appropriate in
the circumstances. The court shall not mandate approval of less than
sixty-seven percent of the votes in the association to amend any
provision of the declaration.
NEW SECTION. Sec. 10 A new section is added to chapter 64.38 RCW
to read as follows:
(1) Except as provided in subsection (2) of this section, a
declaration recorded after the effective date of this section may be
amended with the approval of at least sixty-seven percent of the total
votes in the association, or any larger percentage specified in the
declaration.
(2) A declarant may unilaterally amend the declaration, but only if
the right to amend is clearly stated in the declaration and if the
amendment:
(a) Subjects additional property to the declaration pursuant to a
plan of expansion set forth in the declaration;
(b) Withdraws property from the declaration, if the withdrawal is
allowed under the terms of the declaration and if the property to be
withdrawn is not owned by any third party;
(c) Brings any provision of the declaration into compliance with
any applicable statute, rule, regulation, or judicial determination;
(d) Enables any title insurance company to issue title insurance
coverage for the lots;
(e) Enables any institutional or governmental lender, purchaser,
insurer, or guarantor of mortgage loans, to make, purchase, insure, or
guarantee mortgage loans for the lots; or
(f) Satisfies the requirements of any local, state, or federal
governmental agency.
The amendment shall not adversely affect the title to any lot
unless the owner of the affected lot consents to the amendment in
writing.
(3) The declaration may require all or a specified number or
percentage of the eligible mortgagees who hold first lien security
interests encumbering lots to approve specified actions of the owners
or association as a condition to the effectiveness of those actions,
but a requirement for approval may not operate to:
(a) Deny or delegate control of the general administrative affairs
of the association by the owners or board of directors;
(b) Prevent the association or board of directors from commencing,
intervening in, or settling any litigation or proceeding; or
(c) Prevent any insurance trustee or the association from receiving
and distributing any insurance proceeds.
For purposes of this subsection, "eligible mortgagee" means the
holder of a mortgage on a lot that has filed with the secretary of the
association a written request for copies of notices of any action by
the association that requires the consent of mortgagees that includes
the lot number and address of the property subject to the mortgage. If
an eligible mortgagee fails to respond to a request for approval within
thirty days following the association's issuance of a notice requesting
such approval, the eligible mortgagee's approval is deemed granted.
(4) The declaration may permit the association's members to approve
an amendment through a combination of votes conducted during meetings
and through a written consent process.
(5) The declaration may require that to be effective all
declaration amendments must be signed by one or more officers of the
association, or if applicable, by the declarant. To be effective, all
declaration amendments must be acknowledged and recorded in each county
in which any portion of the property is located.
NEW SECTION. Sec. 11 A new section is added to chapter 64.38 RCW
to read as follows:
(1) The definitions in this subsection apply throughout this
section unless the context clearly requires otherwise.
(a) "Requestor" means the party requesting mediation.
(b) "Request" means a request for mediation.
(c) "Recipient" means the party that receives the request for
mediation.
(2) For any dispute that arises after the effective date of this
section and is not a subject of any judicial or other legal proceedings
pending before the effective date of this section:
(a) With the exception of the claims listed in (b) of this
subsection, a dispute between owners or between owners and their
association that involve the governing documents must be submitted to
mediation before any party may pursue the claim through court
proceedings.
(b) The following categories of claims are exempt from the
prelitigation mediation requirement under (a) of this subsection:
(i) Claims in which the statute of limitations will soon expire,
except that any party to the lawsuit may file a motion with the court
requesting that the judge order the parties to mediate before allowing
them to proceed with the lawsuit and temporarily stay the litigation
proceedings pending the outcome of mediation;
(ii) Claims for injunctive relief, except that any party to the
lawsuit may file a motion with the court requesting that the judge
order the parties to mediate before allowing them to proceed with the
lawsuit and temporarily stay the litigation proceedings pending the
outcome of mediation;
(iii) Claims for declaratory judgment;
(iv) Claims related to assessments, or the collection of
assessments, or to foreclosures;
(v) Claims for defects in construction of homes and other
improvements, whether individually owned or part of the common areas;
(vi) Claims that involve parties who are not subject to the
association's governing documents;
(vii) Claims between members of the association that are unrelated
to the association's governing documents;
(viii) Claims or issues that have been the subject of a previous
mediation request, response, or mediation conference under this section
within twelve months before the date of the most recent request,
response, or mediation conference, whichever is sooner.
(c) Unless another reasonable alternative dispute resolution
process is set forth in the declaration or adopted by a majority vote
of the nondeclarant members of the association, the following
procedures in this subsection govern the mediation of disputes under
this chapter:
(i) The party requesting mediation must submit a request for
mediation to the other parties;
(ii) The request may be made in any medium, provided that the
requestor can prove the request was received by the recipient;
(iii) Mediation must be conducted by one mediator, unless all
parties to the mediation agree otherwise;
(iv) Unless all parties to the mediation agree otherwise, the
mediation conference must be held within ninety days of the date the
request is received by all recipients;
(v) The request for mediation must: State the issues that the
requestor wishes to mediate; certify that the requestor is willing to
meet in good faith; and propose a mediator and provide full contact
information (name, address, telephone and fax numbers, and e-mail
address) for the proposed mediator;
(vi) The recipients must respond to the requestor no later than
thirty days after the request is received by all recipients. The
response may be made in any medium as long as the recipient can prove
that the response was received by the requestor;
(vii) If the recipient agrees to mediate, the response must include
a statement of any additional issues that the recipient wishes to
mediate, a statement of whether the mediator proposed by the requestor
is acceptable to the recipient and, if not, a proposed alternative
mediator and that mediator's contact information. If the recipient
declines to mediate, the response must indicate this decision and
include a statement of the reasons that the recipient declines to
mediate;
(viii) The requestor must reply to the recipient's response within
fifteen days of receipt. If the response identifies additional issues
that the recipient wishes to address at mediation, the reply must state
whether the requestor agrees to mediate those issues. If the requestor
does not agree to mediate those issues, the reply must indicate this
decision and include a statement of the reasons that the requestor
declines to mediate the issues identified by the recipient. A
requestor's refusal to mediate the issues identified in the reply is
subject to (e) of this subsection;
(ix) If the recipient has proposed an alternative mediator, the
reply must state whether the alternative mediator is acceptable to the
requestor. If the alternative mediator is not acceptable, the
requestor must contact the two proposed mediators within fifteen days
of delivering the reply and request that the mediators choose a third
person who is available within the time frame required in this section
to act as mediator;
(x) The mediator must be an attorney or judge. The mediator's
primary function is to assist the parties in communicating with one
another and to find ways to resolve the disputed issues by agreement.
(d) Either the recipient or the requestor can decline mediation.
If mediation is declined, or a party fails to participate in a
scheduled mediation conference, the other party may proceed with filing
a legal action. In such a case, the court may:
(i) Enter an order compelling the parties to participate in a
mediation conference if the court determines that mediation would be
productive or useful; and
(ii) Impose appropriate remedies for a party's unjustified failure
to mediate claims subject to mandatory mediation requirements imposed
under this section including, without limitation, requiring that party
to pay all mediation fees and costs charged by the mediator, reimburse
the plaintiff for the costs of filing suit, reimburse the plaintiff for
service of process costs, and reimburse the plaintiff for some or all
of the plaintiffs' attorneys' fees and costs.
This subsection (2)(d) supersedes any inconsistent provisions in an
association's governing documents. The standard of review of a trial
court's decision under this section is abuse of discretion.
(e) Unless the parties agree otherwise, the fees and costs of
mediation must be shared equally by all parties to the mediation. For
purposes of this subsection (2)(e), "fees and costs of mediation" means
only those fees and costs charged by the mediator or mediation service
and does not include investigation costs or fees paid to an attorney to
represent a party to the mediation. If the mediator requires
prepayment of all or a portion of the anticipated fees and costs, all
parties to the mediation must comply with this requirement. An
association may not condition mediation on a member's payment of any
charges, costs, or fees.
(3) This section does not limit any party's right to seek relief in
a court of competent jurisdiction after the mediation requirements in
this section have been met.
NEW SECTION. Sec. 12 A new section is added to chapter 64.38 RCW
to read as follows:
Unless the governing documents permit or require other methods for
providing notice, all notices required under this chapter or the
governing documents must be delivered or sent by first-class mail
postage prepaid to the mailing address of each owner, but not for a
shorter time period for providing notice than is required under RCW
64.38.035.
NEW SECTION. Sec. 13 A new section is added to chapter 64.38 RCW
to read as follows:
(1) Except as provided under subsection (2) of this section, in a
transaction for the sale of a lot that is subject to this chapter, the
seller shall furnish to a buyer a homeowners' association information
pamphlet that is identical, in form and substance, to the following:
Washington law defines an HOA as a legal entity in which each member is an owner of residential property that is subject to the HOA's jurisdiction as a result of certain recorded governing documents. The law governing homeowners' associations, chapter 64.38 RCW, provides more information in this regard.
The principal governing document of an HOA is often known as the Declaration of Covenants, Conditions, and Restrictions and Easements (CCRs). Other important HOA documents may include Articles of Incorporation, Bylaws, Rules, and Policies.
The services and amenities provided by HOAs vary greatly from community to community. These may include common areas such as a swimming pool, tennis court, playground, trails, community center, or even a golf course. Some HOAs provide landscaping services for homeowners, and some even paint and maintain the exterior of homes.
Each HOA is different, but the most common HOA roles include maintaining common areas and amenities, administering and enforcing use and architectural restrictions, adopting budgets, and collecting assessments.
Generally, the governing documents for an HOA make membership mandatory for all owners within the community. The HOA's governing documents are essentially a legally binding contract between the owner/members and the association. If you have questions about your legal rights and obligations as a member of the HOA, you should consult an attorney.
(6) HOW DOES MEMBERSHIP IN AN HOA AFFECT THE OWNERSHIP OF MY HOME?
By virtue of your membership in an HOA, you will have various rights and obligations as described in the governing documents. These may include restrictions on the use of your property, architectural controls on future improvements of your property, and the obligation to pay assessments, also known as dues, to the HOA.
HOAs are typically governed by a board of directors or board of trustees elected by the homeowners. The board's responsibilities and power depend upon the HOA's governing documents.
The governing documents of an HOA typically give it wide-ranging powers to enforce its covenants, rules, and policies. This may include the power to file a lawsuit for damages or injunctive relief or fine an owner who does not comply with the restrictions.
The governing documents likely give your HOA the power to place a lien on your home or take other legal action if you fail to pay properly levied assessments. If you do not pay your assessments on time, this might result in the foreclosure of your home by the HOA.
(10) WHAT IS THE DIFFERENCE BETWEEN AN HOA AND A CONDOMINIUM ASSOCIATION?
A condominium association is a specialized type of homeowners' association. A condominium association is created under different statutes than those that apply to HOAs. Unless your governing documents state that your community is a condominium created pursuant to the Washington Condominium Act, chapter 64.34 RCW, or the Horizontal Property Regimes Act, chapter 64.32 RCW, it is not a condominium.
(11) WHAT HAPPENS IF ONE OF THE COMMON AREAS OF MY HOA MUST BE REPAIRED OR REPLACED?
Well-managed HOAs will normally include an amount for reserves in their annual budgets. In this way, a portion of the assessments you pay is set aside and builds up over time to pay for expensive repairs or replacements. You should review the HOA's financial statements to determine if this is true for your HOA.
(12) WHAT IS THE AMOUNT OF THE ASSESSMENTS THAT CAN BE CHARGED BY MY HOA?
This information should be provided to you as part of the HOA's annual budget process. If you have questions, you should consult the HOA's manager or a member of its board of directors.
Typically, the governing documents allow for assessments to be adjusted based on the HOA's annual budget. The law governing homeowners' associations requires that an HOA's annual budget be ratified by its members. This is a good opportunity to ask questions as to how budget changes will affect your assessments.
(14) CAN MY HOA RESTRICT THE TYPES OF IMPROVEMENTS I CAN MAKE TO MY HOME?
Depending on your governing documents, your HOA may have certain architectural or design guidelines and restrictions. If it does, there may be restrictions on the exterior appearance of your home, and you may be required to submit plans and specifications for approval before you make any changes to the exterior or build any additions or other structures.
The HOA's governing documents may contain rules relating to trees, landscaping, pets, satellite dishes, clotheslines, fences, parking, home businesses, rental of homes, and other issues. You should carefully read the governing documents to understand the nature of these restrictions.
The answer to this question depends on the governing documents for the particular community. Some governing documents prohibit all rentals, some limit the number of homes that can be rented at any time, while others have no restrictions on leasing.
In Washington state, HOAs must hold a meeting of the membership at least once each year. Notice of the date and time of the meeting must be provided to you by the officers of the association. Your HOA's board will likely meet more often. If you would like information concerning the board's meeting schedule, you should consult the HOA's manager or a member of the board.
(18) CAN I ATTEND THE REGULAR MEETINGS OF MY HOA's BOARD OF DIRECTORS?
Board meetings are generally open to members of the HOA to observe, but not to participate in. The law governing homeowners' associations permits a board to consider certain sensitive topics in private (executive session), and to exclude HOA members from that part of the board's meeting. Review the HOA's governing documents, particularly its bylaws, to determine your rights.
(19) AS A MEMBER OF AN ASSOCIATION, CAN I OBTAIN COPIES OF THE HOA's RECORDS?
The law governing homeowners' associations provides that the records of the HOA must be made available for review by owners during normal business hours at the office of the HOA or its managing agent.
(20) HOW CAN I DETERMINE WHETHER THE HOA OF WHICH I AM CONSIDERING BECOMING A MEMBER FACES ANY SERIOUS FINANCIAL PROBLEMS?
You should ask the seller questions to get a clear picture of the HOA's financial condition.
(21) DO THE BENEFITS OF BELONGING TO AN HOA OUTWEIGH THE BURDENS?
This is a question you should consider when the home you want to buy is part of an HOA. Some of the typical benefits and burdens are described above. Studying the governing documents for the community in which you are considering purchasing a home is an important step. Consider exploring this question with your seller, real estate professional, attorney, and other advisors. You may also wish to speak with neighboring homeowners about the community and the HOA."
NEW SECTION. Sec. 14 A new section is added to chapter 64.38 RCW
to read as follows:
(1) Subject to subsection (2) of this section, the declaration may
provide for a period of declarant control of the association, during
which period a declarant or persons designated by the declarant may (a)
appoint and remove the officers and members of the board of directors
or (b) veto or approve a proposed action of the board or association.
A declarant's failure to veto or approve the proposed action in writing
within thirty days of written notice of the proposed action is deemed
an approval of the proposed action by the declarant.
(2) Regardless of any period provided in the declaration, a period
of declarant control terminates no later than the earliest of: (a)
Sixty days after conveyance of seventy-five percent of the lots that
may be created to lot owners other than a declarant; (b) two years
after the last conveyance or transfer of record of a lot except as
security for a debt; (c) two years after any development right to add
new lots was last exercised; or (d) the date on which the declarant
records an amendment to the declaration, pursuant to which the
declarant voluntarily surrenders the right to further appoint and
remove officers and members of the board of directors. A declarant may
voluntarily surrender the right to appoint and remove officers and
members of the board of directors before termination of the period of
declarant control, but in that event the declarant may require, for the
duration of the period of declarant control, that specified actions of
the association or board of directors, as described in a recorded
instrument executed by the declarant, be approved by the declarant
before they become effective.
(3) No later than sixty days after conveyance of twenty-five
percent of the lots that may be created to lot owners other than a
declarant, at least one member and at least twenty-five percent of the
members of the board of directors must be elected by lot owners other
than the declarant. No later than sixty days after conveyance of fifty
percent of the lots that may be created to lot owners other than a
declarant, at least thirty-three and one-third percent of the members
of the board of directors must be elected by lot owners other than the
declarant.
NEW SECTION. Sec. 15 A new section is added to chapter 64.38 RCW
to read as follows:
Owners may vote in person or by proxy or by any other method
permitted by their governing documents or the law applicable to the
association's legal entity.
NEW SECTION. Sec. 16 A new section is added to chapter 64.38 RCW
to read as follows:
(1) For the purposes of this section, "land use approval
organization" means any legal entity that asserts itself as a successor
or assignee of the declarant or grantor, whether or not the entity
meets the definition of an association under this chapter, and asserts
the authority to:
(a) Enforce covenants;
(b) Approve construction of structures on residential real
property;
(c) Regulate the use of such residential real property; or
(d) Grant or deny variances from any requirements pertaining to
such residential real property.
(2) A land use approval organization may not exercise any authority
over residential real property within its asserted jurisdiction unless
it or its controlling association complies with the duties and
standards, including those for owner membership, meetings, and
elections, required of an association under this chapter.
(3) All members of a land use approval organization shall exercise
good faith in the performance and enforcement of contracts and duties,
and in all other transactions involving the owners or occupants of real
property located within its asserted jurisdiction. For purposes of
this section, "good faith" means honesty in fact and the observance of
reasonable standards of fair dealing.
Sec. 17 RCW 64.06.020 and 2007 c 107 s 4 are each amended to read
as follows:
(1) In a transaction for the sale of improved residential real
property, the seller shall, unless the buyer has expressly waived the
right to receive the disclosure statement under RCW 64.06.010, or
unless the transfer is otherwise exempt under RCW 64.06.010, deliver to
the buyer a completed seller disclosure statement in the following
format and that contains, at a minimum, the following information:
INSTRUCTIONS TO THE SELLER
Please complete the following form. Do not leave any spaces blank. If
the question clearly does not apply to the property write "NA." If the
answer is "yes" to any * items, please explain on attached sheets.
Please refer to the line number(s) of the question(s) when you provide
your explanation(s). For your protection you must date and sign each
page of this disclosure statement and each attachment. Delivery of the
disclosure statement must occur not later than five business days,
unless otherwise agreed, after mutual acceptance of a written contract
to purchase between a buyer and a seller.
I. SELLER'S DISCLOSURES: | |||||||||
*If you answer "Yes" to a question with an asterisk (*), please explain your answer and attach documents, if available and not otherwise publicly recorded. If necessary, use an attached sheet. | |||||||||
1. TITLE | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | A. Do you have legal authority to sell the property? If no, please explain. | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *B. Is title to the property subject to any of the following? | ||||||
| (1) First right of refusal | |||||||||
| (2) Option | |||||||||
| (3) Lease or rental agreement | |||||||||
| (4) Life estate? | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *C. Are there any encroachments, boundary agreements, or boundary disputes? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *D. Is there a private road or easement agreement for access to the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *E. Are there any rights-of-way, easements, or access limitations that may affect the Buyer's use of the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *F. Are there any written agreements for joint maintenance of an easement or right-of-way? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *G. Is there any study, survey project, or notice that would adversely affect the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *H. Are there any pending or existing assessments against the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *I. Are there any zoning violations, nonconforming uses, or any unusual restrictions on the property that would affect future construction or remodeling? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *J. Is there a boundary survey for the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *K. Are there any covenants, conditions, or restrictions which affect the property? | ||||||
2. WATER | |||||||||
| A. Household Water | |||||||||
| (1) The source of water for the
property is: [ ] Private or publicly owned water system [ ] Private well serving only the subject property . . . . . . *[ ] Other water system | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *If shared, are there any written agreements? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(2) Is there an easement (recorded or unrecorded) for access to and/or maintenance of the water source? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(3) Are there any known problems or repairs needed? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | (4) During your ownership, has the source provided an adequate year-round supply of potable water? If no, please explain. | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(5) Are there any water treatment systems for the property? If yes, are they [ ]Leased [ ]Owned | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(6) Are there any water rights for the property associated with its domestic water supply, such as a water right permit, certificate, or claim? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | (a) If yes, has the water right permit, certificate, or claim been assigned, transferred, or changed? | ||||||
| (b) If yes, has all or any portion of the water right not been used for five or more successive years? (If yes, please explain.) | |||||||||
| . . . . . . . . . . . . | |||||||||
| B. Irrigation Water | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | (1) Are there any irrigation water rights for the property, such as a water right permit, certificate, or claim? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(a) If yes, has all or any portion of the water right not been used for five or more successive years? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(b) If so, is the certificate available? (If yes, please attach a copy.) | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | (c) If so, has the water right permit, certificate, or claim been assigned, transferred, or changed? If so, explain: | ||||||
| . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | (2) Does the property receive irrigation water from a ditch company, irrigation district, or other entity? If so, please identify the entity that supplies water to the property: | ||||||
| . . . . . . . . . . . . | |||||||||
| C. Outdoor Sprinkler System | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | (1) Is there an outdoor sprinkler system for the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | (2) If yes, are there any defects in the system? . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(3) If yes, is the sprinkler system connected to irrigation water? | ||||||
3. SEWER/ON-SITE SEWAGE SYSTEM | |||||||||
| A. The property is served by: [ ] Public sewer system, [ ] On-site sewage system (including pipes, tanks, drainfields, and all other component parts) [ ] Other disposal system, please describe: | |||||||||
| . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | B. If public sewer system service is available to the property, is the house connected to the sewer main? If no, please explain. | ||||||
| . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | C. Is the property subject to any sewage system fees or charges in addition to those covered in your regularly billed sewer or on-site sewage system maintenance service? | ||||||
| D. If the property is connected to an on-site sewage system: | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(1) Was a permit issued for its construction, and was it approved by the local health department or district following its construction? | ||||||
| (2) When was it last pumped: | |||||||||
| . . . . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(3) Are there any defects in the operation of the on-site sewage system? | ||||||
| [ ] Don't know | (4) When was it last inspected? | ||||||||
| . . . . . . . . . . . . . . . | |||||||||
| By whom: . . . . . . . . . . . . | |||||||||
| [ ] Don't know | (5) For how many bedrooms was the on-site sewage system approved? | ||||||||
| . . . . . . . . . . . . bedrooms | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | E. Are all plumbing fixtures, including laundry drain, connected to the sewer/on-site sewage system? If no, please explain: . . . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *F. Have there been any changes or repairs to the on-site sewage system? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | G. Is the on-site sewage system,
including the drainfield, located entirely
within the boundaries of the property?
If no, please explain. . . . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | H. Does the on-site sewage system
require monitoring and maintenance
services more frequently than once a
year? If yes, please explain. . . . . . . . . . . . . | ||||||
| NOTICE: IF THIS RESIDENTIAL REAL PROPERTY DISCLOSURE STATEMENT IS BEING COMPLETED FOR NEW CONSTRUCTION WHICH HAS NEVER BEEN OCCUPIED, THE SELLER IS NOT REQUIRED TO COMPLETE THE QUESTIONS LISTED IN ITEM 4. STRUCTURAL OR ITEM 5. SYSTEMS AND FIXTURES | |||||||||
4. STRUCTURAL | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *A. Has the roof leaked? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *B. Has the basement flooded or leaked? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *C. Have there been any conversions, additions, or remodeling? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(1) If yes, were all building permits obtained? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *(2) If yes, were all final inspections obtained? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | D. Do you know the age of the house? If yes, year of original construction: | ||||||
| . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *E. Has there been any settling, slippage, or sliding of the property or its improvements? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *F. Are there any defects with the following: (If yes, please check applicable items and explain.) | ||||||
□ Foundations | □ Decks | □ Exterior Walls | |||||||
| □ Chimneys | □ Interior Walls | □ Fire Alarm | |||||||
| □ Doors | □ Windows | □ Patio | |||||||
| □ Ceilings | □ Slab Floors | □ Driveways | |||||||
| □ Pools | □ Hot Tub | □ Sauna | |||||||
| □ Sidewalks | □ Outbuildings | □ Fireplaces | |||||||
| □ Garage Floors | □ Walkways | □ Siding | |||||||
| □ Other | □ Wood Stoves | ||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *G. Was a structural pest or "whole house" inspection done? If yes, when and by whom was the inspection completed? . . . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | H. During your ownership, has the property had any wood destroying organism or pest infestation? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | I. Is the attic insulated? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | J. Is the basement insulated? | ||||||
5. SYSTEMS AND FIXTURES | |||||||||
| *A. If any of the following systems or fixtures are included with the transfer, are there any defects? If yes, please explain. | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | Electrical system, including wiring, switches, outlets, and service | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Plumbing system, including pipes, faucets, fixtures, and toilets | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Hot water tank | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Garbage disposal | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Appliances | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Sump pump | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Heating and cooling systems | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Security system [ ] Owned [ ] Leased | ||||||
| Other . . . . . . . . . . . . | |||||||||
| *B. If any of the following fixtures or property is included with the transfer, are they leased? (If yes, please attach copy of lease.) | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | Security system . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Tanks (type): . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | Satellite dish . . . . . . Other: . . . . . . | ||||||
6. HOMEOWNERS' ASSOCIATION/COMMON INTERESTS | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | A. Is there a Homeowners'
Association? If yes, provide the name
of the association and contact
information for the association: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | B. Are there regular periodic assessments: | ||||||
| $. . . per [ ] Month [ ] Year [ ] Other . . . . . . . . . . . . | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *C. Are there any pending special assessments? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *D. Are there any shared "common areas" or any joint maintenance agreements (facilities such as walls, fences, landscaping, pools, tennis courts, walkways, or other areas co-owned in undivided interest with others)? | ||||||
7. ENVIRONMENTAL | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *A. Have there been any drainage problems on the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *B. Does the property contain fill material? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *C. Is there any material damage to the property from fire, wind, floods, beach movements, earthquake, expansive soils, or landslides? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | D. Are there any shorelines, wetlands, floodplains, or critical areas on the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *E. Are there any substances, materials, or products on the property that may be environmental concerns, such as asbestos, formaldehyde, radon gas, lead-based paint, fuel or chemical storage tanks, or contaminated soil or water? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *F. Has the property been used for commercial or industrial purposes? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *G. Is there any soil or groundwater contamination? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *H. Are there transmission poles, transformers, or other utility equipment installed, maintained, or buried on the property? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *I. Has the property been used as a legal or illegal dumping site? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *J. Has the property been used as an illegal drug manufacturing site? | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *K. Are there any radio towers in the area that may cause interference with telephone reception? | ||||||
8. MANUFACTURED AND MOBILE HOMES | |||||||||
| If the property includes a manufactured or mobile home, | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *A. Did you make any alterations to the home? If yes, please describe the alterations: . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *B. Did any previous owner make any alterations to the home? If yes, please describe the alterations: . . . . . . . . . . | ||||||
| [ ] Yes | [ ] No | [ ] Don't know | *C. If alterations were made, were permits or variances for these alterations obtained? | ||||||
9. FULL DISCLOSURE BY SELLERS | |||||||||
| A. Other conditions or defects: | |||||||||
| [ ] Yes | [ ] No | [ ] Don't know | *Are there any other existing material defects affecting the property that a prospective buyer should know about? | ||||||
| B. Verification: | |||||||||
| The foregoing answers and attached explanations (if any) are complete and correct to the best of my/our knowledge and I/we have received a copy hereof. I/we authorize all of my/our real estate licensees, if any, to deliver a copy of this disclosure statement to other real estate licensees and all prospective buyers of the property. | |||||||||
DATE . . . . . . . . . . . . | SELLER . . . . . . . . . . . . | SELLER . . . . . . . . . . . . | |||||||
| NOTICE TO THE BUYER | |||||||||
| INFORMATION REGARDING REGISTERED SEX OFFENDERS MAY BE OBTAINED FROM LOCAL LAW ENFORCEMENT AGENCIES. THIS NOTICE IS INTENDED ONLY TO INFORM YOU OF WHERE TO OBTAIN THIS INFORMATION AND IS NOT AN INDICATION OF THE PRESENCE OF REGISTERED SEX OFFENDERS. | |||||||||
II. BUYER'S ACKNOWLEDGMENT | |||||||||
| A. | Buyer hereby acknowledges that: Buyer has a duty to pay diligent attention to any material defects that are known to Buyer or can be known to Buyer by utilizing diligent attention and observation. | ||||||||
| B. | The disclosures set forth in this statement and in any amendments to this statement are made only by the Seller and not by any real estate licensee or other party. | ||||||||
| C. | Buyer acknowledges that, pursuant to RCW 64.06.050(2), real estate licensees are not liable for inaccurate information provided by Seller, except to the extent that real estate licensees know of such inaccurate information. | ||||||||
| D. | This information is for disclosure only and is not intended to be a part of the written agreement between the Buyer and Seller. | ||||||||
| E. | Buyer (which term includes all persons signing the "Buyer's acceptance" portion of this disclosure statement below) has received a copy of this Disclosure Statement (including attachments, if any) bearing Seller's signature. | ||||||||
NEW SECTION. Sec. 18 (1) The department of community, trade, and
economic development shall create a task force of up to thirteen
members to provide recommendations on model declarations and a method
for distributing information on homeowners' associations to prospective
buyers. The task force shall draft one or more model declarations for
use by declarants forming homeowners' associations. In developing the
model declarations, the task force shall review declarations creating
homeowners' associations that are currently used in Washington state
and other states. The task force shall also draft proposed legislation
that provides an effective method for distributing information about a
lot's homeowners' association to that lot's prospective buyer. In
developing the proposed legislation, the task force shall review the
methods used in Washington state and other states.
(2) The task force membership shall include:
(a) Two board members representing two different homeowners'
associations;
(b) Three homeowners who own a home that is their primary residence
in a community or cooperative that is governed by chapter 64.38 RCW;
(c) Two attorneys with expertise in homeowners' association
formation;
(d) A representative from the department of community, trade, and
economic development; and
(e) A representative of city governments.
The speaker of the house of representatives and the majority leader
of the senate may each appoint one representative and one senator from
each of the two largest caucuses to serve on the task force on an ex
officio basis.
(3) The task force shall convene as soon as possible upon the
appointment of its members. The task force shall elect a chair and
adopt rules for conducting the business of the task force.
Administrative and clerical support shall be provided by the department
of community, trade, and economic development.
(4) Legislative members of the task force must be reimbursed for
travel expenses in accordance with RCW 44.04.120.
(5) By December 10, 2008, the task force shall provide a report of
recommended model declarations and proposed legislation to the
legislature and the governor.
(6) This section expires December 31, 2008.
NEW SECTION. Sec. 19 The code reviser shall alphabetize and
renumber the definitions in RCW 64.38.010.
NEW SECTION. Sec. 20 If specific funding for the purposes of
section 18 of this act, referencing section 18 of this act by bill or
chapter number and section number, is not provided by June 30, 2008, in
the omnibus appropriations act, section 18 of this act is null and
void."
Correct the title.