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Dear Senator Jeff Wilson, Rep Jim Walsh and Rep Joel McEntire,

Senator Jeff Wilson (Jeff.Wilson@leg.wa.gov); 'Walsh, Rep. Jim' <Jim.Walsh@leg.wa.gov>; 'McEntire, Rep. Joel' <Joel.McEntire@leg.wa.gov>; 'Nansen Malin' <nansenmalin@gmail.com>

'Ryan, Suzi' <Suzi.Ryan@leg.wa.gov>; 'Dodson, Kari' <Kari.Dodson@leg.wa.gov>; 'Lund, Jami' Jami.Lund@leg.wa.gov; Patrick@pk80.com

 

I am writing to encourage you to support the RiseUpWA  suggestions for changes to the State Laws in regards to HOA Reform.   The State of Washington has allowed HOAs the rights of municipalities even though they are not.   HOAs although initially set up for the benefit of the homeowners, quickly become mini dictatorships that do the homeowners more harm than good.  As there are no penalties in the law for HOA Board Members that violate the laws, and Board Members use the insurance and collective funds of the HOA to give themselves impunity from all wrong doing.  They then feel free to violate the Washington State HOA laws and can disregard any form of ethics.   HOAs board members then use unethical attorneys, and property managers to further abuse the homeowners.  Homeowners are the only actual stakeholders in an HOA, however are rarely included in the design of the laws.  We need laws to protect the homeowners.

Currently an HOA can foreclose on someone’s home in a non-judicial foreclosure, for as little as a $200 debt.   We are allowing people to have their homes taken away over a $200 debt?  How does that make sense?

 

As you may realize, over 30% of homes in Washington State are under some type of Home, Condo or other Association.   Many people lose some or all of their life savings or even their homes due to the dictatorial HOA governments that violate the RCWs and even their own governing documents.   Many are forced to move.  I understand in Surfside HOA here in Ocean Park, WA, there is an average 30% annual turnover with many being forced out of their homes by unethical Board members.  We need HOA Reform to protect the homeowners.

Many HOAs have covenants that are aimed at keeping the elderly, poor, disabled and others of protected classes out of the community.  These can be as simple as rules such as grass being required to be taller than 2” and shorter than 3” or changing the rules of what housing colors are allowed to force people to repaint their homes, or enforcing certain covenants on some but not others.   The elderly, poor, disabled and other protected classes may have more difficulty meeting these requirements than others for obvious reasons.

 

The laws RiseUpWA has proposed would reduce homelessness by helping to keep people in their homes, reduce the upcoming wave of Covid related foreclosures, increase affordable housing, protect property rights, keep seniors in their homes and protect them from abuse by corrupt boards, attorneys and property managers, and protect the vulnerable and people of color.

Please read RiseUpWA’s 15 simple reform suggestions at: https://riseupwa.org/hoa-reform/    and let us know that we can list your name as being in support of these HOA Reform suggestions.

Below are some of the examples of illegal and unethical actions that I have personally experienced and witnessed:

(Don’t talk about what you don’t like about the covenants, talk about illegal, unethical and unfair actions of the HOA Boards.  They are more looking for a list than a story.  I included some samples below, just talk about things you personally know.)

Talk about your issues here:
 

There is a small Faction of our community that have taken over the community.  They are frequently referred to as “The Faction” 

They abuse their power to maintain control and keep their members on the board and terrorize and control the community. 

This Faction uses the authority and money of the HOA to bully, terrorize and manipulate the rest of the members.

 

The Faction controlled Board refuses to follow due process and basic parliamentary process in their proceedings yet at other times insists on following their interpretation of Roberts Rules of Order when it is to their advantage.

 
They use selective enforcement of the SHOA covenants and County Ordinances to manipulate the membership.   

 

The board threatens with court action to intimidate members, because they are using the HOA’s money vs the individual member having to risk his own money to defend themselves. 

 

Board members fail to recuse themselves when they have conflicts of interests.

Illegal trespassing by some Board members and Committeemen occurs even after warnings from the Sheriff. 

Misrepresentation of the laws, Roberts Rules of Order and Governing Documents and covenants are made by the Board Faction and committee members. 

There is no equality of enforcement of the bylaws, covenants or of local or state laws in the SHOA. 

The Board Faction, through harassment, misrepresentation, threats, and collusion, can and does maintain control of the SHOA and its Board as currently constituted. 

 

Illegal meetings, Open Meetings Act

 

There has been much public discussion (anonymous blog) between the members of SHOA, as to how the Surfside issues, decided exclusively by the Board, have a different financial impact on different members and their property values.  This difference range could be in millions of dollars.  I believe that SHOA violation citations are being issued to control that profit. 

Usurping Authority.   Members of our Board as well as members of its Architectural Committee have repeatedly represented to the members of SHOA that they had the authority to enforce County Ordinances.  SHOA has sometimes fined people or threatened to fine people based on their opinion that the member was violating a County Ordinance

Although I have confronted the entire Board on falsely claiming that they have the authority to enforce their interpretation of County Ordinances, they continue to do so.

 

Frequently Board members have written letters using the Surfside signature block, thus representing that they are speaking for SHOA.  They have done this without a Board vote, thus as individuals they are usurping the authority of the Board.  Our current President frequently makes decisions outside of board meetings with only the Faction board members involved, with the other board members unaware of the actions.

 

I understand some Faction members who are also individual property owners of Surfside, under their own volition, with no Board vote, went to a variety of meetings including the State Shoreline meetings and represented that they were there to represent SHOA.  I did not personally witness this but I understand that others did. 

 

Faction Board Members have also contacted our SHOA attorney on their own, had secret meetings with him for their own personal benefit, running up attorney’s fees for the HOA without a Board vote.  I understand the attorney was well aware of this.

 

They refuse to share that response advice from local counsel with the SHOA members.  They at times would not share letters they wrote, or letters that SHOA attorney wrote.

In some cases they refuse to get the attorney’s opinion in writing. 

The Board Faction members will only tell us what they feel the SHOA attorney might have said. 

I believe much more is withheld from the other property owners of Surfside.

 

In my opinion, the base motivation for these actions is financial, as some of the Board members and other members have stated so, indicating that their decisions are based on increasing the value of their properties.

 

Withholding information illegally - I believe that SHOA is in violation of RCW 64.38.045 (2)

RCW 64.38.045 (2) provides, in relevant part, that

“All records of the association, including the names and addresses of owners and other occupants of the lots, shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents on reasonable advance notice during normal working hours at the offices of the association or its managing agent. The association shall not release the unlisted telephone number of any owner. The association may impose and collect a reasonable charge for copies and any reasonable costs incurred by the association in providing access to records.” (Emphasis added is mine.)

Board refuses member access to the name, Surfside address, mailing list, phone numbers and email addresses.

One of the effects of these violations of the RCWs is to affect the property rights and property value of certain properties in different financial directions, I believe the motivation for these violations is mostly financial and is for the benefit of a very few including the Board Faction.

 

Collusion - It is my opinion that extensive collusion occurs between Faction Board and the office staff.

 

Often information is shared by the office staff between only a few Board members, and there have been illegal meetings and attempts at illegal meetings where more than a quorum of Board members were present and discussions and deliberations of SHOA issues take place without any notice of the meeting, even to the other Board members.  These meetings take place by email, phone, and in person.  In most meetings, I believe the Board members have obviously already colluded with each other before coming to the meetings. 

 

It was proposed to create a blog where the Board members could communicate openly between meetings in a manner that all members could observe, and the Faction Board members voted it down.  This puts the rest of the board in a very bad position, being forced to violate open meeting rules in order to have their voices heard and those that they represent to have a voice.

RCW 64.38.035 (4) states in relevant part, “Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners.

In my opinion, this Board has repeatedly violated this law.

 

Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss 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. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.” (Emphasis added is mine.)

In my opinion, Faction Board members have repeatedly violated this law.

ILLEGAL INTERFERENCE WITH AN ELECTION - As stated before, in SHOA the results of the election can dramatically negatively affect the property values and enjoyment of property by some property owners, and increase the value and enjoyment of their properties by other property owners.  SHOA has refused to allow me, and select others, to have equal access to the membership list.  

 

Faction Board members have allowed some candidates to post articles in the SHOA official publication, Surfside Weekender, but do not allow opposing viewpoints.  The Weekender is used as notification to the members of HOA meetings.   But, the mailing list for it does not include all members, some are not informed of it.  I believe this is another purposeful effort to reduce transparency.  The calendar of meetings is also posted on the Website but I don’t believe that posting on the website is valid notice.

 

As the intent of these violations of the RCW affect the property rights and property value of certain properties in different financial directions, the motivation for these violations is mostly financial.

 

ILLEGAL TRESPASSING - Board Members and Committee Members have frequently trespassed on property to harass members.  

 

The Board created a document that they require property owners to sign when building or significantly modifying any structure.  The property owner is force to sign a document which states,

“The Owner hereby irrevocably grants consent for Surfside employees, members of the Surfside Architectural Committee and other representatives of Surfside to enter onto the Property, now and in the future, for inspection related to the Project including, without limitation, whether the Project should be approved, whether the Project as constructed, or as being constructed, complies with the approval granted and with the Covenants of Surfside and whether there is any change to the Project in the future.

The Owner herby releases Surfside, the employees of Surfside, the members of the Surfside Architectural Committee and other representatives of Surfside from any and all liability in anyway related to and/or arising out of entry onto the Property pursuant to this Ongoing Authorization to Enter on Property.”

In other words, if the property owner wants to build any structure on their property, or change or modify it in any significant way, they are blackmailed into giving up their privacy and property rights for eternity. They are also required to defend and indemnify all SHOA members trespassing on their property!

I also understand that not all people who have built structures were required to sign this document, only those selected by the Faction Board members.  (I am not sure this is still in effect)

 

SPECIAL FAVOR AND UNEQUAL ENFORCEMENT - One example; our covenants state that the exterior materials including siding and roofs of all garages and carports shall match the materials used for the primary residence.   As far as I can see all the other properties that have attached or detached garages meet these covenants other than current Board member and Treasurer Jim Clancy, who recently built a large two car garage.  It is my opinion that structure is not in compliance with this covenant.   Despite several complaints to SHOA about this garage, no action against this violation has been taken by SHOA. 

An SHOA covenant states that no houses shall be built taller than 35 feet and the height is measured from the crest of the street that the house is built on.  There are multiple houses on J Place that, in my opinion, do not conform to this covenant.  There are many other examples of unequal enforcement.

 

HARASSMENT - The HOA has threatened and harassed property owners by misrepresenting the SHOA covenants and representing to property owners that they had the authority to interpret and enforce their interpretation of the County Ordinances.   The property owners were threatened with fines and in some cases were fined, and some may have had liens placed against their properties.  Some property owners have sold their properties and moved, or are considering selling and moving, due to the illegal and unethical actions of the HOA.   After Randy Durdel won his court case against SHOA, according to Randy, one of the Board members threatened him. He was informed that if he restored his shed, the way the court had allowed, that the Board member would continue to harass him. Randy is afraid to even tell me the name of the Board Member that threatened him.

People are frequently charged with false covenant violations and forced to pay for attorneys to defend themselves.  This causes significant stress, especially to the poor and elderly, and damages their lives both financially and emotionally.

 

After Faction Board member Jim Clancy proposed using drones to enforce covenants, and I presented public opposition to that, a drone was flown over my wife’s head while she was in on our property, my neighbors complained to the police when a drone was hovered over my property for about 5 minutes while I was not there, and another police complaint was filed when my neighbor discovered a Faction member trespassing on the fire department property surveilling my property.

 

SELECTIVE REFUSAL TO APPROVE CONSTRUCTION/ENFORCEMENT - In many cases SHOA enforces covenants against one person but not the property owners with the same issue in nearby properties.   SHOA has refused to approve structures even though they cannot find any covenant violation, and in one case, even though the court ruled in favor of another member with the same issue.

 

FAILURE TO FOLLOW DUE PROCESS - The SHOA consistently fails to allow due process to members seeking to appeal Board action.  The only appeal process allowed is an appeal to the Board that originally issued the citation! There is no provision for an independent determination of the validity of the matters appealed or for due process of a member. 

 

They could not produce a covenant that I had violated, and would not provide the identity of the person who had made the complaint.  The person that I understand filed the complaint was also on the Architectural Committee and is a Faction Board member.  One of the other Board members was also a trustee of the Architectural Committee.  One of the other board members, Thomas Rogers, pointed out that it was a conflict of interest for those Board members who were on the Architectural Committee voting on an appeal of a matter they instigated and the same for the board member that made the complaint.   They voted anyway and the President and our Business Manager Laura, counted the votes of those that should have recused themselves.  They decided 5 to 4 to deny approval of my shed.  

 

I wrote requesting an appeal to the Appeal Process detailing all the ways they had violated my due process rights.   The Board Faction refused to hear my appeal.  I believe they did so without a vote of the Board.

 

Tree Topping and Trustee Laws.   - My understanding is that the trustee laws specify that the trustees of an organization must fairly represent those that choose them as trustees both in financial and other matters. 

+++++

RCWs > Title 11 > Chapter 11.98 > Section 11.98.078

11.98.075  <<  11.98.078 >>   11.98.080

RCW 11.98.078

Trustee duty of loyalty.

(1) A trustee must administer the trust solely in the interests of the beneficiaries.

 

 

Trustee Duties, Liabilities and Compensation, from:

http://www.schoenfeldlaw.com/trustee-duties-liabilities-and-compensation/

 

The trustee of a trust is under a duty to exercise a high degree of care in administering the trust.  This is commonly known as fiduciary responsibility.  The following are duties, which exist under Washington law that a trustee must fulfill in administering a trust.  By the trust agreement, the creator of the trust can limit or expand the duties and responsibilities of the trustee.  If there is a disagreement between the law of the state of Washington and the terms of the trust agreement, the trust agreement must be followed.  However, in no event may a trustee rely upon the fact that the trust agreement grants the trustee discretion as relief from the duty to act in good faith and with honest judgment.

 

Trustee Duties

 

Duty of Loyalty.

 

While administering a trust, a trustee must refrain from placing himself or herself in a position where the trustee’s personal interests or those of third parties do or may conflict with the interests of the beneficiary.  In short, a trustee must avoid self-dealing.  …

 

+++++

 

Besides all the issues mentioned above, there are tree topping covenants in Surfside that are designed to protect the views of a small minority of the population, about 350 of 2500 properties.  However there are no actual guarantees of a view in Surfside.  In spite of that, there are covenants that create different limits of heights of trees on different properties.  There is a tree committee made up mostly of members of the 350, that regularly measure the trees and force people to top their trees under threat of fines.  At this point I believe the entire committee is made up of members of the 350.  These rules are beneficial to the 350 and increase the value of their properties at a significant cost and reduction of property rights and value to the approximately 1400 properties between them and the ocean.  This covenant also damages the peace and property values of all the property owners of Surfside.  Topping the trees damages the trees, damages and in some cases severely damages the appearance of the property and the property values of those properties as well as the surrounding properties.

 

SHOA professes to follow the Washington State Firewise program but because the Board Faction wants the tree topping to continue, they refuse to publish in the weekly newsletter the fact that the Firewise program warns against tree topping.  The State says that tree topping is a fire hazard and reduces the value of properties.

 

I believe that the actions of the Faction are risking the fire safety, damaging the physical and mental safety of the members, and damaging the financial safety of the larger part of the community, especially as this community is made up of a large number of elderly and retired people as well as people with low incomes.

 

PHYSICAL HARM - Many of the members are elderly retirees.  The harassment, misrepresentation of the covenants, threats of fines and threat of a lawsuit and the costs involved to defend their rights along with the resulting damage to their properties and lives has caused health issues for them.   One member that sold his property told me that he sold it because he was concerned about the damage living here was causing to his heart.   I personally have felt the physical toll of the stress caused by this and understand how the unethical, and in my opinion illegal actions of SHOA could be damaging or even fatal to members, especially the elderly, and there is a large percentage of elderly members.  Randy Durdel expressed an interested in being elected to the Board.  He is one of the members that recently sued SHOA for forcing him to remove a shed roof although his roof did not violate the covenants. He won the case, but felt the stress of situation here had significantly damaged his health.  He was going to run for the Board to help fix the problems here, but changed his mind after his ordeal with SHOA due to health reasons.

 

FINANCIAL HARM - According to the Washington State Department of Resources, topping of trees causes a variety of fire hazards, and reduces the value of properties.   350 properties benefit from the tree topping covenant in Surfside, while 1400 properties are asked to pay for it, the 350 do not pay for it, and about 2200 properties suffer lost property values and continuous damage to their enjoyment of their property investment.  The property values of Surfside lots are lower than other similar property values on the peninsula, apparently due to that awful HOA governance.

 

The misrepresentation of the covenants, threatening, harassment, unequal enforcement, lack of due process, and general corruption faced by the members of Surfside causes an excessively high turnover in properties further reducing the property values and the enjoyment of the property owner’s investment.

 

RV USAGE - RVers are not allowed to use their land full time despite the county ordinances that state that all properties can keep on RV on their property all year.  The restrictions on the RV lots decrease the value of the lots and the enjoyment of the property investment of the RVers.  It also makes it very difficult for the RVers to participate in the governance of SHOA.  The RVers that are forced to remove their RVs from their properties can RENT space in a storage facility in SHOA but are over-charged according to our Articles of Incorporation and they cannot live in their RVs in the storage facility.  The RV facility runs at a profit even though that violates our governing documents.  Even though this has been discussed many times, in and out of board meetings. The Board Faction refuses to allow a change to be made.

 

 

The HOA Faction seems to have an undo-influence over the County.  The County Ordinances grant the right for every property owner to have one RV on their lot year round as long as they don’t live in it, except in Surfside.

 

  The County actually created an ordinances that singles out Surfside as the only place the County that I am aware of where RVs are not allowed to leave on RV on their lot year round.  The County Ordinances specify that each parcel can have one RV on their lot year round, but a separate ordinance says that the RV ordinances for Surfside are the covenants.   This is not so for anyplace else in Pacific County including all the other HOAs.   It would seem that this would be an illegal ordinance.

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