Fixing Improper Board Decisions

It’s important to make sure your association’s board of directors makes decisions following proper procedure. But what do you do if your board doesn’t?  There are several ways to validate board decisions after the fact. The way to fix an improper board action depends on what kind of mistake was made. Here are some possibilities.

Subsequent ratification:  If an action taken by the board is determined to be invalid for some procedural reason, but is otherwise a proper board action, the board may validate the action by subsequent ratification. For instance, if a board subcommittee (or individual board member) makes a decision that it is not empowered to make, or if the board makes a decision in between meetings, the entire board may vote to ratify the decision at the next board meeting.  The meeting can be a regularly scheduled board meeting or a special meeting called for a specific purpose; so long as the board follows the appropriate voting procedures, the decision becomes valid.  Be sure to record all board decision in the minutes.  As we say often in our office, if it isn’t written down, it didn’t happen.

Publish to owners:  Suppose the board adopts a new late fee of $50 and posts minutes reflecting that decision by the mail boxes.  An owner challenges the late fee claiming he was not given proper notice.  RCW 64.34.304 allows fines “in accordance with a previously established schedule.”  To fix the problem, the association should provide notice of the new fine to all owners as required by the Declaration or CC&Rs.  This is usually accomplished by simply mailing notice of the new fine to the owners via regular first class mail (but as always, check the notice requirements in your governing documents).

Put it to a vote:  If the board takes an action that required a vote of the owners in order to be valid, have the owners vote on the issue. For instance, unit owners must approve an amendment to the Declaration to restrict the ability of owners to rent their units (RCW 64.34.264(4)). If the board voted to prohibit unit owners from renting their units, that decision would not be effective because the board cannot make that decision; it must be made by the unit owners. To remedy this, the board could call a meeting of the owners and vote on the issue; if the required number of owners approves a declaration amendment restricting rentals, the restriction would become valid.

As with all matters affecting condominium associations, it is essential to examine your community’s governing documents, as well as Washington law, to determine what decisions may be made by the board of directors, which decisions must be made by the owners, and the percentage of votes needed. The first challenge to most board actions will be for procedural errors.  Try to avoid them, or take remedial action to correct them when necessary.

If you have any questions we can answer, please feel free to leave a comment or contact us directly.  We look forward to continuing this conversation with you in our future posts!

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13 Responses to Fixing Improper Board Decisions
  1. Alan
    February 6, 2013 | 7:06 pm

    Great post, very informative! When a condo association amends the declaration by vote of the association members, where can one find a record of those votes? Are they required by law to be kept? I’m a homeowner in a condominium association and in looking at an amendment to our declaration, it states something like “owners holding at least 67% of the votes…”. This amendment was filed with the state before I purchased my unit and I’d like to verify that the vote did take place and see the outcome of the vote. Thanks in advance for any help that you can provide!

  2. Valerie Farris Oman
    February 11, 2013 | 8:48 pm

    Hello Alan,

    The short answer is that we cannot answer your specific question without giving legal advice and without knowing more. However, here is some general information that might help:

    – Once an amendment is recorded, its validity may only be challenged for one year. If more than a year has passed, the amendment is not subject to challenge. RCW 64.34.264.

    – There is some question as to whether someone who was not an owner at the time of the adoption of an amendment has standing to challenge the amendment.

    – An owner can make a request to review the records kept by the association, and if the ballots were kept you would be able to review them. It is not specifically required by law that the ballots be retained.

  3. Alan
    February 12, 2013 | 5:11 am

    Thanks for the information, Valerie. I’ve heard and read conflicting remarks regarding RCW 64.34.234. If an amendment to the Declaration didn’t actually receive the correct percentage of votes required by law at the time it was put into effect, could it still be challenged even if it’s been longer than a year?

  4. Valerie Farris Oman
    March 1, 2013 | 7:02 pm

    Alan, the information you’re asking for is too specific to answer on a blog where we are giving general information, not legal advice! You need to gather up all of the governing documents and information you have and take them to a qualified professional who can advise you on the particulars of your situation. Good luck!

  5. DAVD SWETALLA
    July 9, 2013 | 6:14 pm

    REQUESING FEEDBACK FROM AREA CONDOMINIUM ASSOCIATION MEMBERS: IF MEMBERS ARE ACCUSED OF WRONG DOING BY A BOARD MEMBER OR THE MANAGEMENT COMPANY DOES THE ACCUSER THEN HAVE THE RIGHT TO SIT-IN JUDGMENT OF THE ACCUSED? IF THE ANSWER IS NO, THEN HOW DOES YOUR ASSOCIATION HANDLE THE PROCESS?
    DO THE BOARD MEMBERS HEAR BOTH SIDES OF THE STORY BEFORE MAKING A DECISION? IF NO THEN I BELIEVE THIS PROCESS IS WRONG, IMMORAL AND AGAINST THE 14TH AMENDMENT OF THE U.S. CONSTITUTION.
    I WOULD LIKE TO SEE YOU COMMENTS ON THESE ISSUES.

  6. Valerie Farris Oman
    July 19, 2013 | 4:11 pm

    There is no “one size fits all” answer to your question. How associations, via their boards of directors, “process” complaints against homeowners is generally outlined in the governing documents for the association. For example, some associations require that an owner be given a warning before they can be fined for a violation of the governing documents. Other associations do not require a warning. However, all associations must abide by certain guidelines before fining an owner, including that the fine must be assessed in accordance with a properly adopted, published fine policy AND the owner must be given an opportunity to request a hearing before the fine is assessed.

    Generally the best approach to handling a homeowner who has violated the governing documents is to send that owner a notice of the violation and ask them to correct it, but also warn that if they fail to do so, they will be fined. If the violation continues, a second notice should be sent notifying the owner of the ongoing violation and the impending fine. The second notice should let the owner know that they have the right to request a hearing, and should tell them when and how to do so.

    If notices such as this are given and the owner fails to respond, the board may make a decision to fine the owner based upon the information it has; the law does not require a hearing before every fine, it only requires that owners be notified of their right to *request* a hearing.

    If a hearing is conducted, the board (or the hearing committee, if different) has the authority to set reasonable time limits and procedures in place to allow the hearing to run smoothly and conclude in a reasonable period of time.

    This is all very general information, and you should look to the governing documents for your association for specific guidance in how violations should be handled.

  7. DAVD SWETALLA
    July 25, 2013 | 10:56 pm

    THANK YOU FOR YOUR PROMPT RESPONSE.
    I STILL HAVE QUESTIONS OF COURSE.
    IT IS O.K. FOR THE ACCUSER TO SIT IN JUDGMENT OF THE ACCUSED?? ALSO THEY DO NOT NEED TO HEAR BOTH SIDES OF THE STORY BEFORE THEY INSTIGATE SANCTIONS ON THE OWNERS?? THIS GIVES THE BOARD AND MANAGEMENT CO. COMPLETE CONTROL!! THEY ARE JUDGE,JURY,EXECUTIONER AND GOD???
    WHERE IN THE R.C.W.’S DOES IT GIVE THE OWNERS ANY RIGHTS AT ALL??
    GOING BEFORE THE BOARD OR HAVING A HEARING YOU ARE STILL BEING JUDGED BY YOUR ACCUSER. WHAT KIND OF JUSTICE IS THIS??
    WHAT IF THE BOARD MEMBERS OR MANAGEMENT CO. VIOLATE THE RULE,REGS. OR BY-LAWS, DO THE OWNERS HAVE A RECOURSE?? IF YES, WHAT IS IT??
    THANKS AGAIN FOR YOU QUICK RESPONSE.

  8. Valerie Farris Oman
    July 29, 2013 | 5:33 pm

    Hello again, David. Unfortunately you are asking for specific advise regarding your particular circumstances, and we cannot give legal advice on a blog to a non-client. If you are truly concerned that your association is handling things improperly, you should consult with an attorney experienced in community association law. This link will take you to a list of qualified professionals. Good luck & thanks for reading!

  9. DAVD SWETALLA
    July 30, 2013 | 9:21 pm

    Hello again to you: Sorry if I made the request sound like an individual problem that was not my intention.
    My understanding is that this is a problem in most Condo. Assoc. Are their any government agencys that can be contacted such as county, state or federal, who could put some light on this matter.
    Attorneys I don’t think will help. I’m not out to sue anybody. I just want some rights for the owners.

  10. Valerie Farris Oman
    July 31, 2013 | 5:54 pm

    Hi again, David. There are not currently any governmental agencies at any level that specifically oversee condo associations. However, as a general rule of thumb, we recommend that concerned owners become more involved in their associations though a variety of ways. Volunteering for committees or even to be on the board can be a huge contribution to the health of your association, and can allow you the opportunity to interact with – and perhaps even influence – the board members governing your association.

  11. DAVD SWETALLA
    August 6, 2013 | 1:48 am

    IN CLOSING:
    LET ME GET THIS STRAIGHT, THEIR ARE NO OVERSITES OR CONTROLS OF BOARD OR MANAGEMENT CO. IN THE CONDO ASSOC.
    NO BASIC BY-LAWS SET UP BY R.C.W. COMMITTEE, STAE ,COUNTY OR FEDERAL.
    THE BOARD, MANAGEMENT CO. AND THEIR LAWYERS SET UP BY-LAWS, RULES AND REGULATIONS. THIS INTITLES THEM TO COMPLETE POWER. IF THEY VIOLATE THEIR OWN LAWS OR RULES THEY CAN NOT BE HELD RESPONSIBLE.
    THAT LEAVES MILLIONS OF CONDO OWNERS UNDER THE GUN WITH NO RIGHTS. SOMETHING SHOULD BE DONE.
    I WANT TO THANK YOU FOR YOUR IN-PUT.

  12. Valerie Farris Oman
    August 7, 2013 | 2:59 pm

    Hello again,

    That is not an accurate summary of what I have shared here in this conversation or elsewhere on this blog. Condo associations (and their boards) are governed by the Washington statutes that apply to condos (i.e., the Condominium Act) and non-profit corporations. The question you originally asked was whether there are agencies at the local, state, or federal level which oversee how an association is run/governed, and the answer to that question is that there are no such agencies.

    There are rules and procedures set forth in the governing documents for each association that an association, via its board, must comply with. But, again, there is no agency overseeing associations to ensure they comply with their own rules/documents.

    To be clear, it is also important to understand that it is not the board or the manager who sets up the governing documents. The CC&Rs/Declaration are written/recorded by the developer when the condo is created. The Declaration can only be amended by a vote of the owners (different percentages are required depending on the type of amendment). Bylaws are also generally put in place by the developer, and some associations require owner approval before the bylaws can be changed. Other associations allow the bylaws to be changed by the board without an owner vote. Rules may also be adopted/changed by a board vote without owner input. However, a board may not adopt a bylaw or rule that is contrary to state law or to the contents of the declaration, for example.

    If an association is not run in accordance with the RCWs or its own governing documents, owners have the option of taking their concerns to the board. Beyond that, you are left with the question of whether the issue at hand is serious enough to warrant legal action. That legal action could be as simple as hiring an attorney to review the specifics and governing documents to advise you on whether things are being done “right,” and/or to write a letter to the association on your behalf if one is warranted. Of course, more serious legal action would include litigation (lawsuit).

    Hope all this helps. I think this will be my last response on this comment thread.

  13. John Stewart
    August 5, 2014 | 5:13 pm

    Question. I live in a condo in Lynnwood, we are an old act(Horizontal regime) and recently had our Annual meeting and elected new Board members. How do we fix this issue, it has come to our attention that one of the new members is not an owner, can the Board appoint a new member or would the person with the next highest vote total assume their righful position?

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Fixing Improper Board Decisions

It’s important to make sure your association’s board of directors makes decisions following proper procedure. But what do you do if your board doesn’t?  There are several ways to validate board decisions after the fact. The way to fix an improper board action depends on what kind of mistake was made. Here are some possibilities.

Subsequent ratification:  If an action taken by the board is determined to be invalid for some procedural reason, but is otherwise a proper board action, the board may validate the action by subsequent ratification. For instance, if a board subcommittee (or individual board member) makes a decision that it is not empowered to make, or if the board makes a decision in between meetings, the entire board may vote to ratify the decision at the next board meeting.  The meeting can be a regularly scheduled board meeting or a special meeting called for a specific purpose; so long as the board follows the appropriate voting procedures, the decision becomes valid.  Be sure to record all board decision in the minutes.  As we say often in our office, if it isn’t written down, it didn’t happen.

Publish to owners:  Suppose the board adopts a new late fee of $50 and posts minutes reflecting that decision by the mail boxes.  An owner challenges the late fee claiming he was not given proper notice.  RCW 64.34.304 allows fines “in accordance with a previously established schedule.”  To fix the problem, the association should provide notice of the new fine to all owners as required by the Declaration or CC&Rs.  This is usually accomplished by simply mailing notice of the new fine to the owners via regular first class mail (but as always, check the notice requirements in your governing documents).

Put it to a vote:  If the board takes an action that required a vote of the owners in order to be valid, have the owners vote on the issue. For instance, unit owners must approve an amendment to the Declaration to restrict the ability of owners to rent their units (RCW 64.34.264(4)). If the board voted to prohibit unit owners from renting their units, that decision would not be effective because the board cannot make that decision; it must be made by the unit owners. To remedy this, the board could call a meeting of the owners and vote on the issue; if the required number of owners approves a declaration amendment restricting rentals, the restriction would become valid.

As with all matters affecting condominium associations, it is essential to examine your community’s governing documents, as well as Washington law, to determine what decisions may be made by the board of directors, which decisions must be made by the owners, and the percentage of votes needed. The first challenge to most board actions will be for procedural errors.  Try to avoid them, or take remedial action to correct them when necessary.

If you have any questions we can answer, please feel free to leave a comment or contact us directly.  We look forward to continuing this conversation with you in our future posts!

Share and Enjoy:
  • Print
  • Digg
  • StumbleUpon
  • del.icio.us
  • Facebook
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  • Twitter
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13 Responses to Fixing Improper Board Decisions
  1. Alan
    February 6, 2013 | 7:06 pm

    Great post, very informative! When a condo association amends the declaration by vote of the association members, where can one find a record of those votes? Are they required by law to be kept? I’m a homeowner in a condominium association and in looking at an amendment to our declaration, it states something like “owners holding at least 67% of the votes…”. This amendment was filed with the state before I purchased my unit and I’d like to verify that the vote did take place and see the outcome of the vote. Thanks in advance for any help that you can provide!

  2. Valerie Farris Oman
    February 11, 2013 | 8:48 pm

    Hello Alan,

    The short answer is that we cannot answer your specific question without giving legal advice and without knowing more. However, here is some general information that might help:

    – Once an amendment is recorded, its validity may only be challenged for one year. If more than a year has passed, the amendment is not subject to challenge. RCW 64.34.264.

    – There is some question as to whether someone who was not an owner at the time of the adoption of an amendment has standing to challenge the amendment.

    – An owner can make a request to review the records kept by the association, and if the ballots were kept you would be able to review them. It is not specifically required by law that the ballots be retained.

  3. Alan
    February 12, 2013 | 5:11 am

    Thanks for the information, Valerie. I’ve heard and read conflicting remarks regarding RCW 64.34.234. If an amendment to the Declaration didn’t actually receive the correct percentage of votes required by law at the time it was put into effect, could it still be challenged even if it’s been longer than a year?

  4. Valerie Farris Oman
    March 1, 2013 | 7:02 pm

    Alan, the information you’re asking for is too specific to answer on a blog where we are giving general information, not legal advice! You need to gather up all of the governing documents and information you have and take them to a qualified professional who can advise you on the particulars of your situation. Good luck!

  5. DAVD SWETALLA
    July 9, 2013 | 6:14 pm

    REQUESING FEEDBACK FROM AREA CONDOMINIUM ASSOCIATION MEMBERS: IF MEMBERS ARE ACCUSED OF WRONG DOING BY A BOARD MEMBER OR THE MANAGEMENT COMPANY DOES THE ACCUSER THEN HAVE THE RIGHT TO SIT-IN JUDGMENT OF THE ACCUSED? IF THE ANSWER IS NO, THEN HOW DOES YOUR ASSOCIATION HANDLE THE PROCESS?
    DO THE BOARD MEMBERS HEAR BOTH SIDES OF THE STORY BEFORE MAKING A DECISION? IF NO THEN I BELIEVE THIS PROCESS IS WRONG, IMMORAL AND AGAINST THE 14TH AMENDMENT OF THE U.S. CONSTITUTION.
    I WOULD LIKE TO SEE YOU COMMENTS ON THESE ISSUES.

  6. Valerie Farris Oman
    July 19, 2013 | 4:11 pm

    There is no “one size fits all” answer to your question. How associations, via their boards of directors, “process” complaints against homeowners is generally outlined in the governing documents for the association. For example, some associations require that an owner be given a warning before they can be fined for a violation of the governing documents. Other associations do not require a warning. However, all associations must abide by certain guidelines before fining an owner, including that the fine must be assessed in accordance with a properly adopted, published fine policy AND the owner must be given an opportunity to request a hearing before the fine is assessed.

    Generally the best approach to handling a homeowner who has violated the governing documents is to send that owner a notice of the violation and ask them to correct it, but also warn that if they fail to do so, they will be fined. If the violation continues, a second notice should be sent notifying the owner of the ongoing violation and the impending fine. The second notice should let the owner know that they have the right to request a hearing, and should tell them when and how to do so.

    If notices such as this are given and the owner fails to respond, the board may make a decision to fine the owner based upon the information it has; the law does not require a hearing before every fine, it only requires that owners be notified of their right to *request* a hearing.

    If a hearing is conducted, the board (or the hearing committee, if different) has the authority to set reasonable time limits and procedures in place to allow the hearing to run smoothly and conclude in a reasonable period of time.

    This is all very general information, and you should look to the governing documents for your association for specific guidance in how violations should be handled.

  7. DAVD SWETALLA
    July 25, 2013 | 10:56 pm

    THANK YOU FOR YOUR PROMPT RESPONSE.
    I STILL HAVE QUESTIONS OF COURSE.
    IT IS O.K. FOR THE ACCUSER TO SIT IN JUDGMENT OF THE ACCUSED?? ALSO THEY DO NOT NEED TO HEAR BOTH SIDES OF THE STORY BEFORE THEY INSTIGATE SANCTIONS ON THE OWNERS?? THIS GIVES THE BOARD AND MANAGEMENT CO. COMPLETE CONTROL!! THEY ARE JUDGE,JURY,EXECUTIONER AND GOD???
    WHERE IN THE R.C.W.’S DOES IT GIVE THE OWNERS ANY RIGHTS AT ALL??
    GOING BEFORE THE BOARD OR HAVING A HEARING YOU ARE STILL BEING JUDGED BY YOUR ACCUSER. WHAT KIND OF JUSTICE IS THIS??
    WHAT IF THE BOARD MEMBERS OR MANAGEMENT CO. VIOLATE THE RULE,REGS. OR BY-LAWS, DO THE OWNERS HAVE A RECOURSE?? IF YES, WHAT IS IT??
    THANKS AGAIN FOR YOU QUICK RESPONSE.

  8. Valerie Farris Oman
    July 29, 2013 | 5:33 pm

    Hello again, David. Unfortunately you are asking for specific advise regarding your particular circumstances, and we cannot give legal advice on a blog to a non-client. If you are truly concerned that your association is handling things improperly, you should consult with an attorney experienced in community association law. This link will take you to a list of qualified professionals. Good luck & thanks for reading!

  9. DAVD SWETALLA
    July 30, 2013 | 9:21 pm

    Hello again to you: Sorry if I made the request sound like an individual problem that was not my intention.
    My understanding is that this is a problem in most Condo. Assoc. Are their any government agencys that can be contacted such as county, state or federal, who could put some light on this matter.
    Attorneys I don’t think will help. I’m not out to sue anybody. I just want some rights for the owners.

  10. Valerie Farris Oman
    July 31, 2013 | 5:54 pm

    Hi again, David. There are not currently any governmental agencies at any level that specifically oversee condo associations. However, as a general rule of thumb, we recommend that concerned owners become more involved in their associations though a variety of ways. Volunteering for committees or even to be on the board can be a huge contribution to the health of your association, and can allow you the opportunity to interact with – and perhaps even influence – the board members governing your association.

  11. DAVD SWETALLA
    August 6, 2013 | 1:48 am

    IN CLOSING:
    LET ME GET THIS STRAIGHT, THEIR ARE NO OVERSITES OR CONTROLS OF BOARD OR MANAGEMENT CO. IN THE CONDO ASSOC.
    NO BASIC BY-LAWS SET UP BY R.C.W. COMMITTEE, STAE ,COUNTY OR FEDERAL.
    THE BOARD, MANAGEMENT CO. AND THEIR LAWYERS SET UP BY-LAWS, RULES AND REGULATIONS. THIS INTITLES THEM TO COMPLETE POWER. IF THEY VIOLATE THEIR OWN LAWS OR RULES THEY CAN NOT BE HELD RESPONSIBLE.
    THAT LEAVES MILLIONS OF CONDO OWNERS UNDER THE GUN WITH NO RIGHTS. SOMETHING SHOULD BE DONE.
    I WANT TO THANK YOU FOR YOUR IN-PUT.

  12. Valerie Farris Oman
    August 7, 2013 | 2:59 pm

    Hello again,

    That is not an accurate summary of what I have shared here in this conversation or elsewhere on this blog. Condo associations (and their boards) are governed by the Washington statutes that apply to condos (i.e., the Condominium Act) and non-profit corporations. The question you originally asked was whether there are agencies at the local, state, or federal level which oversee how an association is run/governed, and the answer to that question is that there are no such agencies.

    There are rules and procedures set forth in the governing documents for each association that an association, via its board, must comply with. But, again, there is no agency overseeing associations to ensure they comply with their own rules/documents.

    To be clear, it is also important to understand that it is not the board or the manager who sets up the governing documents. The CC&Rs/Declaration are written/recorded by the developer when the condo is created. The Declaration can only be amended by a vote of the owners (different percentages are required depending on the type of amendment). Bylaws are also generally put in place by the developer, and some associations require owner approval before the bylaws can be changed. Other associations allow the bylaws to be changed by the board without an owner vote. Rules may also be adopted/changed by a board vote without owner input. However, a board may not adopt a bylaw or rule that is contrary to state law or to the contents of the declaration, for example.

    If an association is not run in accordance with the RCWs or its own governing documents, owners have the option of taking their concerns to the board. Beyond that, you are left with the question of whether the issue at hand is serious enough to warrant legal action. That legal action could be as simple as hiring an attorney to review the specifics and governing documents to advise you on whether things are being done “right,” and/or to write a letter to the association on your behalf if one is warranted. Of course, more serious legal action would include litigation (lawsuit).

    Hope all this helps. I think this will be my last response on this comment thread.

  13. John Stewart
    August 5, 2014 | 5:13 pm

    Question. I live in a condo in Lynnwood, we are an old act(Horizontal regime) and recently had our Annual meeting and elected new Board members. How do we fix this issue, it has come to our attention that one of the new members is not an owner, can the Board appoint a new member or would the person with the next highest vote total assume their righful position?

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