THE OPT-IN OPTION IN WUCIOA: RCW 64.90.370
When the clock strikes midnight on December 31, 2027, any HOA or COA which has not updated their governing documents to be in compliance with all 120 sections of the Washington Uniform Community Interest Ownership Act (“WUCIOA” – RCW 64.90) runs the risk of legal challenges to any actions taken by Association Boards under the old, expired HOA/COA statutes,¹ which will then no longer be valid.
Currently there are over 10 specific provisions in the WUCIOA that have already gone into effect for all HOAs, COAs, plat communities, and other Associations formed before July 1, 2018.² On January 1, 2028, all WUCIOA requirements will apply to all Associations. Associations should not delay to begin the process of bringing declarations and by-laws into conformity with WUCIOA to assure compliance, clarity, and the protection of the Association, Board members, as well as the interests of unit owners.
In order to encourage Associations to move forward and facilitate a smoother transition statewide to the WUCIOA, the Washington State Legislature has provided a statutory short-cut for Association Boards to achieve compliance: the opt-in option. (RCW 64.90.370)
This option is available to Associations organized under RCW 64.32, RCW 64.34, and RCW 64.38. (See the chart below to determine which statute your Association currently falls under.)
Associations who wish to update their governing documents currently have two options. Any HOA or COA formed under the older statutory acts can choose to amend their governing documents to comply with those several specific provisions of WUCIOA already applicable to them and in effect. This would provide short-term compliance until 1/1/28.
Alternatively, such Associations can amend simply to state before the 2028 deadline that they now intend to be governed by the entirety of WUCIOA. With this second option, whichever older statutory act they were previously operating under would no longer apply to their Association going forward.
That is: RCW 64.32, RCW 64.34 and RCW 64.38
Note 1: HOA and COA communities organized after 7/1/18 are already, of course, subject to the entirety of the WUCIOA provisions, but older communities are still subject to most of the provisions of the older statutory acts cited above in this footnote.
Note 2: There will be no grace period to achieve compliance for those Associations created under prior laws.
See RCW 64.90.365 and previous blog posts for details on these staggered enactments over the past several years.
As a general rule, amendments to any Association’s governing documents should be made by following the amendment procedure in the Association’s declaration and according to any applicable statutes. Please note though that if an Association wishes to amend their governing documents to conform their provisions, whether partially or entirely, to WUCIOA, RCW 64.90.370 provides options to the Association to do so lawfully without strictly complying with the amendment process required by its governing documents. This may be an attractive option for Associations with declarations that impose particularly onerous voting requirements to validate such proposed amendments.
In this regard, RCW 64.90.370 sets forth procedures that Associations may use in place of the sometimes more burdensome requirements of the governing documents.
First, an Association can begin amending their governing documents to conform to WUCIOA in one of two ways:
(1) the Board can decide updating to conform to the new law is appropriate and notify unit owners amendments are being considered, or
(2) over 20% of the total number of unit owners can gather and submit a collective written request to the Board to start the amendment process.
Next, once the Board decides to move forward with amending the governing documents to conform with WUCIOA, they must decide what amendments are necessary to achieve compliance. Then the Board must send two things to all unit owners:
(1) the proposed amendment(s) in writing, and
(2) notice of a meeting to discuss the changes at least 30 days in advance of the meeting date.
Third, after the Association amendment meeting has happened and there is general agreement on the proposed changes, the Board, once again, must send two things to all unit owners:
(1) the proposed final amendment(s) in writing and
(2) a ballot to approve or reject the proposed amendment(s).
Finally, before recording the revised documents with the County with the official enactment date for same, the Board must generate and retain a record that the vote fulfilled two requirements:
(1) At least 30 percent of the unit owners participated in the voting process and
(2) at least 67 percent of the votes were in favor of the proposed amendment(s).
Even with this simplified option, amending an Association’s governing documents to conform to WUCIOA is a time and work intensive process requiring volunteer commitment, several rounds of legal notice to unit owners, and a formal vote. Allowing enough time to fulfill the legal process requirements can save countless frustrations and potential litigation.
Because WUCIOA is complex and imposes many new substantive and procedural requirements versus the older HOA and COA statutory acts, and in recognition of the unique values and priorities of different planned communities, seeking legal counsel before beginning the amendment process is certainly prudent if not essential.
If you have questions or would like professional assistance regarding these new laws (or regarding other HOA or COA legal issues), we can help.
Chart³
RCW Chapter:
Title of Chapter:
Applies to:
Expiration date:
RCW 64.90
Washington Uniform Community Interest Ownership Act
(WUCIOA)
Condos, HOAs, and all other “common interest communities” created on or after July 1, 2018
AND
All older HOAs/COAs which have opted in early
BUT NOTE:
A few of its important provisions do apply currently to all older HOAs/COAs too
No expiration date
**The WUCIOA goes into effect Jan 1, 2028, and will permanently replace the other three Acts below.
RCW 64.32
Horizontal Property Regimes Act (Condominiums)
(the “Old Act”)
Condominium and certain other Associations created before July 1, 1990
Expires Jan 1, 2028
(When 64.32 is repealed and replaced by WUCIOA)
RCW 64.34
Washington Condominium Act
(the “Condo Act” or WCA)
Condominium Associations created between July 1, 1990, and June 30, 2018
Expires Jan 1, 2028
(When 64.34 is repealed and replaced by WUCIOA)
RCW 64.38
Washington Homeowners’ Associations Act
(the “HOA Act” or WHOA)
HOAs created before July 1, 2018
Expires Jan 1, 2028
(When 64.38 is repealed and replaced by WUCIOA)
