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Fall is the time to prepare for winter—cold and wet conditions not only make you miserable, but they can damage your home. Now is the time to start if you haven't already. Better late than never. Some winterizing can wait, some can’t. Make a list of what needs to be done, and tackle the time-sensitive tasks first. Here’s a few tips to help you get a jump on winter and stay cozy when the temperatures drop.
The doctrine of adverse possession can be found in the Code of Hammurabi, written around 2000 B.C.E. The doctrine was also observed by the ancient Romans. American property law (inherited from the British) recognizes the idea that one property owner can take title to land belonging to someone else. Adverse possession claims frequently arise in community associations. For example, suppose an owner’s lot is adjacent to common property, and over the years the owner gradually builds a flower bed, installs a play structure, and mows the grass several times throughout the year. If this continues for 10 years, the owner may claim adverse possession and take title to part of the common property.
Suppose there are two adjacent parcels. We’ll call them “Redacre” and “Greenacre”:
Now, suppose the owner of Greenacre decides to built a fence. But when the fence is constructed, it’s on Redacre’s property:
After a period of 10 years (and assuming the requirements of adverse possession are met), the owner of Greenacre may take title and ownership of the 20’ strip of land:
In order to establish a claim for adverse possession, the claimant must prove that the use is:
Open and notorious means that the claimant has left no doubt in the mind of the true owner of the potential adverse possession claim. The type of use or occupation must be consistent with the nature of the land. For example, planting trees on property that already has shrubs, bushes, and trees, is not open or notorious. That wouldn’t be an obvious adverse use. Limited use of property isn’t open or notorious, either. Occassional hiking or hunting on someone else's land doesn’t meet the requirement.
The next element is exclusive use. This doesn’t mean the claimant must use or occupy the property on a daily basis. Exclusive possession only requires occupancy that is characteristic of exclusive ownership. Building a fence is almost always considered exclusive use. But cattle occasionally breaking through a neighbor’s fence and grazing is not considered exclusive use. Cattle frequently wander onto adjacent parcels of land.
Things get tricky when it comes to proving the “hostile” requirement. Whether possession or use is hostile depends on the mindset of the claimant. In most cases, a mistaken belief of land ownership constitutes hostile. Suppose I purchase property and wrongly assume that my boundary line is 50 feet beyond the true boundary line. I then build a shed within the 50’, all the while believing it’s my land. That mistaken belief satisfies the hostile requirement.
Lastly, my adverse use or possession must be continuous. In most states, continuous means a period of at least 10 years. However, claimants may take advantage of “tacking”. Let’s say John builds a fence on the neighbors property and has satisfied all of the other requirements of adverse possession. After 3 years, John sells to Jill, who after only 1 year, sells to Jack. Using “tacking”, Jack may use the previous 4 years of ownership by John and Jill to meet the 10 year requirement.
Getting title through adverse possession isn’t as simple as declaring you’ve met all the requirements. Title is granted by a court through lawsuit to “quiet title.” In other words, the claimant must prove to a judge that each and every element of adverse possession has been satisfied.
For property owners who think they may be subject to an adverse possession claim, there are couple of options—all of which must be exercised before the 10 year period. First, the true owner may file a claim for trespass. If I notice my neighbor building a fence on my property, they are technically trespassers. Similarly, the true owner may preemptively file a suit to quiet title.
Most community association bylaws state a specific quorum requirement for owner or membership meetings. The purpose of a quorum is to avoid binding owners to decisions made by an unrepresentatively small number of individuals. Simply put, quorum is the minimum number of members or owners required to conduct business at a meeting. That minimum number may be a percentage of owners or a specific, fixed number of owners. If at the start of an owner meeting it appears the quorum requirement has not been met, the meeting cannot continue. The only action that may be taken is to set the time and place for another meeting. Any substantive action taken in the absence of a quorum is deemed invalid.
Some governing documents may not provide for a quorum requirement. In that case, there are statutory defaults. In Oregon, if the governing documents are silent then the quorum requirement is 20% of the owners (ORS 94.655). Washington has a slightly larger default quorum requirement:
Unless the governing documents specify a different percentage, a quorum is present throughout any meeting of the association if the owners to which thirty-four percent of the votes of the association are allocated are present in person or by proxy at the beginning of the meeting.(RCW 64.38.040)
Keep in mind that quorum can be achieved by owners attending a meeting in person or by proxy. It’s conceivable that quorum could be achieved by only a few owners attending a meeting in person, but each of those owners having multiple proxies from other owners.
If your homeowner or condominium association has difficulty meeting its quorum requirement, here are a few ideas to consider to increase membership attendance:
- Consider changing the location to a more convenient or comfortable place;
- Plan ahead and choose a meeting date that doesn’t conflict with vacation periods or holidays;
- Send notice of the meeting via mail, email, and any other means which owners are likely to receive;
- Consider serving food or refreshments;
- Give away door prizes.
Most community associations use parliamentary procedure to govern board and owner meetings. In the United States, the most popular form of parliamentary procedure is Robert’s Rules of Order. Complicated? Surely. But if you understand a few basics, you can learn how to run a civil and efficient meeting. Here’s the key to Robert’s Rules: 1) Motion 2) Second 3) Debate 4) Vote. The entire meeting should follow those steps.
First, a member of the assembly makes a motion. This is how business is brought before the group. Standing up and complaining, or voicing a concern, is not a motion and is “out of order.” Instead of standing up to complain about the state of disrepair of the clubhouse, I can make a motion. For example: “I move that we spend $2000 to repair the clubhouse.”
Next, another member of the assembly must second the motion. This simply ensures that at least one other member wishes to debate the motion. If a second is not received, the motion dies and a new motion may be entertained.
Now is the time to debate the motion. Members of the assembly take turns explaining why the assembly should vote for or against the motion.
Once the debate is closed, the assembly votes on the motion. Then the chair announces the outcome of the vote and a new motion may come before the assembly. The process repeats itself until a motion to adjourn the meeting is made.
To be sure, there are dozens of nuances and technical details. For example, during debate of a motion the maker of the motion speaks first, you alternate between those for the motion and those against the motion, those who haven’t spoken get precedence over those that have, etc., etc. Don’t get hung up on the technical aspects—-just remember: Motion, Second, Debate, Vote. That’s 99% of knowing Robert’s Rules.
Click here for a simple chart of parliamentarian motions: Motions Chart
To learn more about amending your governing documents, check out our article: Amending Your Governing Documents
Amending your condominium or homeowners association governing documents is no easy chore. It can be a long and costly process, and even then, you may not receive enough votes to approve the amendments. The process of amending goes like this:
1. Identify the reasons for amendments 2. Determine any statutory requirements 3. Determine voting requirements 4. Decide on the method of voting 5. Solicit owner feedback on proposed amendments 6. Conduct the vote 7. Prepare the amendments for recording 8. Sign and notarize 9. Secure any governmental approvals 10. Record the amendments with the county recorder
Here are some things to consider before embarking on an amendment project:
Identify the Reasons for the Amendments
There are many reasons to amend governing documents. Common reasons include:
1. Legislative changes 2. Ambiguous provisions 3. Outdated provisions 4. Community demographic has changed 5. Removal of “declarant” language 6. Adding or removing restrictions
It’s critical that the reasons for each amendment are conveyed to the owners. After all, most amendments require owner approval. Making a convincing case to the ownership will result in higher voter turnout and more “yes” votes.
Find out What’s Required
Most CC&R amendments require a vote of between 65%-75% of the entire ownership. Bylaw amendments typically require a majority vote of the owners. However, sometimes state law will require different approval requirements. For example, in Oregon condominiums the approval of 75% of all owners is required for any amendment related to pet restrictions or the rental or leasing of units. (ORS 100.410(4)). In Washington, a homeowners association may amend its governing documents to remove discriminatory provisions by a majority vote of just the board of directors (RCW 64.38.028)
Method of Voting
Most associations will find it impossible to approve a governing document amendment at a physical meeting of the owners. For a CC&R amendment requiring 75% approval, the chances of that many owners attending a physical meeting in person or proxy is slim. The most common method is to conduct the vote by written ballot. Better yet, some communities may conduct the vote via online ballot. This often generates the most voter turn out. For an example of an online ballot, click here.
Finalize and Record
Once the required number of votes have been received, the amendment must be prepared for signature and recording. In some cases, approval by the state or a governmental authority must be received and reflected on the amendment. The amendment should contain references to the original documents which are subject to the amendments, and must be signed and notarized. The amendments do not become effective until recorded with the county recorders office.
This year the Florida legislature adopted Senate Bill 1520, governing the termination of condominium associations. You can review the changes here.
Definitions
Statutory Framework - The Oregon Condominium Act (ORS Chapter 100) governs:
Approvals
Disclosure Statement
Reserves & Reserve Studies
Conversions
Right of First Refusal - Before the declarant sells any unit to a third party in a conversion condominium without substantial renovation of the unit, the declarant must first offer to sell the unit to the tenant who occupies it. The terms of the offer are specified by statute. The offer terminates 60 days after the tenant receives it or upon the tenant’s earlier written rejection of the offer, and it must be accompanied by all of the applicable disclosure statements issued by the Real Estate Commissioner as required by the Oregon Condominium Act.
Timing - The Oregon Condominium Act provides that the notice of conversion must be given to a tenant at least 30 days before the declarant presents the right of first refusal to the tenant. ORS 100.305(3). In addition, the notice of conversion must be given at least 120 days before the conversion condominium declaration is recorded. ORS 100.305(1).
Regulation of Sales - Unlike condominium statutes in other states, the Oregon Condominium Act relates only to the sale (or resale) of units by developers and not to casual resales of single units by individual owners. The act defines a developer as a declarant or any person who purchases an interest in a condominium from a declarant, successor declarant, or subsequent developer for the primary purpose of resale. ORS 100.005(13).
Real estate contracts can be complicated documents. Here's a checklist to make sure the necessary terms and conditions are covered in the contract.
Tax season is among us— get green for going green this year. If you've purchased energy-efficient products or energy systems, you may be eligible for a $100 to $6,000 tax credit. Don't wait until next year, Oregon energy programs expire in December 2017.
For more information on Oregon's Residential Energy Tax Credit Program See Here.
Oregon and Washington law makers are in session. There are several proposed house and senate bills which impact condominium and homeowner associations. Here's a brief summary, along with links to review the language of the proposed legislation.
Oregon
SB 470 - Would prohibit CC&Rs, Bylaws, or Articles of Incorporation from prohibiting or restricting certified family child care homes. Read bill.
HB 2722 - In the event of a drought or water shortage, a condominium association may not require owners to irrigate landscaped areas. Read bill.
HB 3056 - Associations often file lawsuits against delinquent owners. If the association receives a court judgment, this bill clarifies that the judgment does not operate to release or extinguish the lien on the owner’s property. Read bill.
HB 3057 - This bill adds criteria for a board of directors to use when updating or reviewing the association’s reserve study. In addition, the proposed legislation changes the timeframe for financial reviews from 180 days to 300 days. Read bill.
HB 3094 - The current laws governing the restatement of governing documents is vague. This bill clarifies the meaning of “restatement” and establishes requirements for the board to follow when preparing and recording a restatement. Read bill.
Washington
SB 5134- This bill will give homeowners an objective timeframe of 45 days notice to be heard by the board of directors before the association may impose or collect charges for late payments of assessments. Read Bill.
SB 5250- Often times, it is very difficult for associations to obtain the required amount of votes to amend the bylaws due to non-participation. This law provides an alternative process for acquiring and counting votes to amend condominium bylaws. Read Bill.
Portland Landlord/Tenant Ordinance 188219 Also known as the “relocation assistance” ordinance, the temporary measure mandates that if a landlord raises rent on a tenant by more than 10% or evicts a tenant without cause, the tenant can demand the landlord to reimburse them for up to $4500 in moving costs. Actual amounts vary depending on size and cost of the unit, and the neighborhood. Small-scale landlords who manage only one rental unit are exempt. The short-term measure took effect immediately on February 2 and is retroactive for tenants who had received a 90-day no-cause eviction notice within the last 89 days. The law is meant to provide temporary relief for up to 8 months as the city remains under its official housing crisis.
Oregon currently has a statewide ban on rent control. Opponents to the new ordinance claim the ban violates this law. Supporters argue that it’s an effective policy in reducing forced displacement. On March 2, the Oregon House began hearings for House Bill 2004— an expanded version of the city ordinance that allows cities to impose rent control and prohibits no-cause evictions except in certain circumstances.
Imagine if you spent $9 million on your luxury home only to discover afterwards it's sinking? Who's going to pay for the building's repair?
Thinking of buying a floating home?
Before buying, take a closer look at the perks and pitfalls of joining a floating home community.
The plat for your community is an important governing document. The plat is an aerial depiction of the lot boundaries, roadways, common areas, and easements. The filing of the plat and declaration is what creates the community. The plat contains a metes-and-bounds description of the development and the dimensions of each lot and unit. Plat maps can contain very important information. For example, it may show easements, utility line locations, and maintenance obligations--all of which may or may not be found in the CC&Rs or Declaration.
For planned communities, the plat also identifies the common areas. Sometimes, common areas are referred to as "Tracts". Here's an example of a plat depicting a common area, owned by the association:
Condominium and planned community plats are slightly different in the type of information which must be contained in the plat. For condominiums, plats must show the elevations of the units. For example:
If you do not have a copy of the plat for your community, you can get a copy from your county recorder or survey department. Here are the links to locate and download plat maps:
The process of amending governing documents is no easy task. Changes to the CC&Rs typically require between 66%-75% of the owners to approve. Bylaw amendments, on the other hand, are a little easier to modify, usually requiring a majority vote of the owners.
But suppose over the years your governing documents have been amended several times. Numerous amendments can make things complicated. When reading the CC&Rs or Bylaws, the reader must frequently refer to the amendments to confirm which sections have been modified.
“Restating” a governing document means combining the original document with all subsequent amendments. The association prepares a document incorporating all amendments and records a single “restated” version. Now, members can use and refer to a single document instead of an original and multiple separate amendments.
For example, let’s suppose your original Bylaws were adopted in 1995. In 1998 the association (via an amendment) increased the number of directors. Then, in 2000, the members voted to change the date of the annual meeting. Two years later, another amendment was adopted increasing the quorum requirement. Lastly, a recent amendment mandated that the board of directors carry liability insurance. Reading the Bylaws now requires the reader to review each of the amendments to ensure whichever section they are reading hasn’t been modified.
Oregon and Washington both provide procedures for restating. Washington, however, only addresses the process to restate the articles of incorporation. (RCW 24.03.183).
The procedure for Oregon planned communities and condominiums is the same. The board of directors adopts a resolution to prepare, codify, and record individual amendments. This does not require a vote of the owners. At the beginning of the restated document, the board must:
1. Include a statement that the board has adopted a resolution authorizing a restatement;
2. Not include any other changes which have not been properly adopted by the membership (except for scriveners’ error or to conform with format or style);
3. Include a certification by the president and secretary that the restated document includes all previously adopted amendments;
4. Cite to the document recording numbers of the previous amendments; and
5. Record the restatement in the county records where the community is located.
If your association has adopted multiple amendments over the years, talk with a qualified attorney and consider codifying and restating your documents.
The Portland metro area and central Oregon are covered in snow and ice. As a result, dangerous conditions may exist in common area parking lots, sidewalks, or roadways. What is the community association’s obligation to clear or remove natural accumulations of snow and ice?
Some states have adopted the “Massachusetts Rule”. This rule states that property owners have no obligation to remove snow or ice from common areas under an association’s control. However, if the association aggravates the natural conditions, there may be liability. For example, suppose an association shovels snow from a walkway, but fails to put sand or salt on the surface. The walkway is now covered in a sheet of ice and has created an even more dangerous condition. In that case, there may be liability.
There are dozens of cases in different jurisdictions dealing with a property owner or association’s obligation for snow and ice conditions. For instance, in a number of cases in which an individual slipped and fell on ice or snow while walking on or across a parking lot, the courts, reasoning in general that a defendant was not liable for slip-and-fall accidents on natural accumulations of snow but could be liable for unnatural accumulations or aggravations of natural conditions, held that it was or could be proven that there was liability because the defendant plowed, sanded, or otherwise cleared the snow in a poor manner, or left icy or slushy ruts or tracks in which the plaintiff slipped.
Many court decisions have found that It is unfair to make a landowner or community association absolutely liable for every slip-and-fall accident on snow in a lot, especially as this would require the owner or association to spend the entire winter clearing the lot on pain of losing a liability suit. Moreover, it is equally unfair to require the lot owner or association to shoulder the expense of plowing and replowing the lot during the course of a continuous storm. In this vein, many jurisdictions have ruled that there is no liability for an accident that takes place while a storm is still going on or a reasonable time thereafter, to give the owner a chance to clear out the lot.
Here are the general rules of thumb for community associations:
1. If the Declaration or Bylaws requires the association to plow, shovel, or clear common areas, the association must do so. Many community associations, particularly in central Oregon, are obligated under the governing documents to provide snow removal. Use a licensed, insured, and bonded contractor to perform those services.
2. In the case where the association has no obligation for snow removal, there is a potential to create liability if the association engages in those activities.
3. If the association has common areas which are generally open to the public, there is typically an obligation to keep those areas clear of snow and ice, regardless of any requirements in the governing documents.
4. If the association has no obligation for snow removal, but decides to provide that service, it should hire a licensed, insured, and bonded contractor. The removal of snow or ice must result in a safer condition than leaving the natural accumulation on the common areas.
Disclaimer: By reading the information above, you do not become a client of the firm. The information provided above is based on general legal principles, and may not be applicable to you. If you have a legal issue or question, you should speak with an attorney.
Most condominium and homeowner associations in Washington and Oregon are subject to open board meeting requirements. The requirements are similar to the laws governing city councils and other governmental agencies. Conceptually, the policy behind open meeting requirements is that members of the community association are entitled to listen and witness the deliberation, discussion, and decision making of the board of directors.
Prior to any board of director meeting, notice must be given to all owners within the community. The notice must state the time and place of the meeting, and ideally, the meeting agenda. Owners are allowed to attend the board meeting, but because non-board members are not part of the “assembly”, owners do not have a right to vote or participate while the board is conducting its business.
There is an exception to the open meeting requirement: executive session. Executive sessions may be used so that the board can discuss private or sensitive topics behind closed doors. Keep in mind, no decisions are made in executive session—it’s only for discussion.
Here’s how the board should use executive session:
1. During a regularly noticed and scheduled board meeting, any member of the board may make a motion to adjourn to executive session.
2. The motion should indicate the general topic of discussion.
3. Once the motion passes, the board asks the audience to exit the meeting or the board moves to a different location.
4. The board then discussed the topic at issue.
5. Once the executive session is completed, the board moves back into the open meeting.
6. If there is an action item as a result of the executive session, a motion is made and a vote taken once back in the open meeting.
Remember, there are only certain topics which are appropriate for executive session. For Washington homeowner associations, those topics are:
1. Considering personnel matters;
2. Consulting with legal counsel or considering communications with legal counsel; and
3. Discussion of likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. (RCW 64.38.035)
For Oregon planned communities and condominium associations, the executive session topics are:
1. Consultation with legal counsel;
2. Personnel matters;
3. Negotiation of third party contracts; and
4. Discussion of delinquent assessments. (ORS 94.640, ORS 100.420)
Condominium and homeowner associations in Washington and Oregon often deal with free speech issues. Political signs are perhaps the most common issue. It is commonly misunderstood that owners have a right to display political signs. Generally, there are no free speech rights in community associations unless granted under the governing documents or state law. There are a few exceptions, though.
Some states, such as Maryland, have enacted statutes authorizing owners in community associations to display “candidate” signs. (Maryland Code Annotated, Section 11-111.2(c)). The Maryland statute specifically states that community association CC&Rs and rules may not prohibit the display of signs advocating for political candidates. Illinois has adopted a similar statute. (765 ILCS 605/18.4(h)).
Another exception is the Federal Flag Act. (18 USC 700, et. seq.). The Act prohibits community associations from barring the display of the American flag. Thus, if the association’s governing documents prohibit flags, that provision in the governing documents is void.
Free speech rights in community associations were given articulate treatment in a New Jersey Supreme Court case. (Committee for a Better Twin Rivers vs. Twin Rivers Homeowners’ Association, 192 NJ 344 (2007)). While the case is not binding in other jurisdictions, the reasoning and basis for the Court’s decision would likely be followed by most state courts. I’m attaching a copy of the decision to this letter.
I’ll explain the facts and discuss the outcome:
Twin Rivers is a planned community consisting of condominiums, townhouses, single family homes and commercial buildings. The community consists of nearly 10,000 residents. The Twin Rivers Homeowners’s Association is a nonprofit corporation created to oversee the affairs and operations of the community. Each owner, upon purchasing property in the community, becomes a members of the Association.
In early 2000, a group of owners formed the Committee for a Better Twin Rivers. The committee repeatedly placed signs throughout the community, and the Association promptly removed the signs each time. The Committee filed a lawsuit against the Association to invalidate its rules governing signs on the basis of free speech protection. The Association’s sign rules prohibited political signs on individual owner’s property and in the common areas of the community.
The case went through the trial court, the Court of Appeals, and ultimately to the New Jersey Supreme Court. In summary, the Court held that in order to enforce constitutional rights, there must be “state action”. This means that a governmental actor or entity must attempt to curtail an individuals free speech rights in order to trigger enforcement. Here, the court held that the Association’s enforcement of its sign rules did not constitute “state action” and that the owners’ expressional activities were not unreasonably restricted.
