Filed
Washington State
Court of Appeals
Division Two
July 21, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WASHINGTON STATE HUMAN RIGHTS No. 61643-2-II
COMMISSION, presenting the case in support
of the complaint filed by JOSEPH
MITCHELL,
Appellant,
PUBLISHED OPINION
v.
SUMMERWALK HOMEOWNERS’
ASSOCIATION; J & M MANAGEMENT,
LLC; XIOMARA MONTES,
Respondents.
PRICE, A.C.J. — In 2024, the Washington State Human Rights Commission (Commission)
filed a complaint against Summerwalk Homeowners’ Association, J & M Management LLC, and
Xiomara Montes (collectively, Summerwalk) for violation of Washington’s Law Against
Discrimination1 (WLAD). The complaint alleged that Summerwalk discriminated against Joseph
Mitchell, a homeowner in the Summerwalk neighborhood, based on his race. According to the
complaint, Summerwalk had enforced its rules and covenants in a disparate manner and treated
Mitchell worse than other homeowners because he is Black. The complaint was brought under a
statute that gave the Commission jurisdiction to pursue claims of discrimination related to “real
1
Chapter 49.60 RCW.
No. 61643-2-II
estate transactions.” The disparate enforcement of the homeowner covenants, the complaint
alleged, was related to a “real estate transaction.”
The complaint was filed with the Office of Administrative Hearings and heard by an
administrative law judge (ALJ). The ALJ, however, dismissed the Commission’s claim, reasoning
that homeowners’ association’s (HOA) covenant enforcement was not sufficiently related to a real
estate transaction. The Commission appeals.2
Whether Summerwalk engaged in discriminatory practices is not before us. Rather, this
appeal raises a narrow question of first impression—whether an HOA’s discriminatory
enforcement of its rules and covenants is the type of conduct that is prohibited by WLAD. We
hold that it is. Accordingly, we reverse the ALJ and remand for further proceedings.
FACTS
I. WASHINGTON’S LAW AGAINST DISCRIMINATION
Our legislature enacted WLAD to eliminate and prevent discrimination within the state.
RCW 49.60.010. It found that discrimination threatens not only the rights of individuals but also
the institutions and foundation of a free and democratic state. RCW 49.60.010. Our Supreme
Court has repeatedly described WLAD as a policy of the “highest order” and the “highest priority,”
and it has noted how the legislature has expanded WLAD’s protections since its initial enactment.3
2
The superior court certified the Commission’s appeal for direct review by the Court of Appeals. 3
Fraternal Ord. of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Ord. of Eagles, 148 Wn.2d 224, 246, 59 P.3d 655 (2002) (“This court has held that the purpose of the WLAD—to deter and eradicate discrimination in Washington—is a policy of the highest order.”) (internal footnote omitted); Jin Zhu v. N. Cent. Educ. Serv. Dist.–ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (noting how actions brought under WLAD are “ ‘vindicating a policy of the highest priority’ ” (quoting Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996))); Suarez
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No. 61643-2-II
“To further this important purpose, both the legislature and Washington courts require that even
in a plain language analysis, WLAD’s provisions must be given ‘liberal construction.’ ” Jin Zhu
v. N. Cent. Educ. Serv. Dist.–ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (quoting
Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)).
Our legislature also created the Human Rights Commission to effectuate WLAD’s purpose.
RCW 49.60.010. The Commission has “general jurisdiction and power” over matters regarding
the
elimination and prevention of discrimination in employment, in credit and
insurance transactions, in places of public resort, accommodation, or amusement,
and in real property transactions because of race, creed, color, national origin,
citizenship or immigration status, families with children, sex, marital status, sexual
orientation, age, honorably discharged veteran or military status, or the presence of
any sensory, mental, or physical disability or the use of a trained dog guide or
service animal by a person with a disability . . . .
RCW 49.60.010. The Commission has the authority to promulgate rules and regulations and to
investigate complaints alleging discrimination. Fraternal Ord. of Eagles, Tenino Aerie No. 564 v.
Grand Aerie of Fraternal Ord. of Eagles, 148 Wn.2d 224, 237, 59 P.3d 655 (2002); RCW
49.60.120.
When investigating a complaint, the Commission acts as an impartial body with “no
predisposition in favor of either complainants or respondents.” WAC 162-08-061(1). It seeks to
determine whether, based on its factual findings, there is “reasonable cause” or “no reasonable
cause” of unfair practices as defined by WLAD. Id. “If ‘reasonable cause’ is found, then the
v. State, 3 Wn.3d 404, 414-15, 552 P.3d 786 (2024) (“Since its passage, the WLAD has been amended several times, and, with its amendments, the legislature expanded the list of protected classes and protected areas.”).
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No. 61643-2-II
objective of the commission is to obtain the remedy that will best eliminate the unfair practices
and prevent their recurrence.” Id. This usually involves the Commission seeking a remedy that
“restor[es] the complainant as nearly as possible to the position [they] would be in if [they] had
not been discriminated against.” WAC 162-08-061(2). The Commission generally begins this
process by trying to come to an agreement with the respondent; however, if those negotiations fail,
the Commission’s complaint and findings will be typically referred to the Office of Administrative
Hearings for adjudication. See RCW 49.60.250(1); RCW 34.12.010.
II. AUTHORITIES AND POWERS OF HOAS
HOAs are private organizations of neighbors designed to provide certain services to the
housing community, create “uniformity and comradery of like-minded groups,” and increase and
maintain the community’s property values.4 Saige Culbertson, Note, Your HOA Does Not Work
for You: Why HOAs Are Not Agents and Do Not Owe Fiduciary Duties, 47 OKLA. CITY U.L. REV.
113, 118 (2022). The first HOAs that emerged during the 1940s often sought to preclude the sale
of homes to historically marginalized groups through racially restrictive covenants. Id. at 115.
Although significant progress has been made with the passage of antidiscrimination laws, remnants
of this legacy remain in modern-day HOAs. Id. at 116-17. A 2019 study showed that HOA
communities are still more racially segregated than non-HOA communities with almost 75 percent
4
Sources often use different terms to describe HOAs depending on whether they are referring to private associations governing condominium complexes or individual houses in the same neighborhood. See, e.g., Gemma Giantomasi, Note, A Balancing Act: The Foreclosure Power of Homeowners’ Associations, 72 FORDHAM L. REV. 2503, 2505 (2004) (distinguishing between “condominium developments” and “HOAs” as distinct types of “property owner associations”). For the purposes of this opinion, we use the term “HOA” to broadly describe any association governing a group of residential properties—whether they be individual homes, condominium units, or townhomes.
4
No. 61643-2-II
of residents being white. Id. at 117. These findings suggest that HOAs can still “serv[e] as a tool
for exclusion of some groups” by way of either facially discriminatory rules or selectively
enforcing the rules against homeowners of color. Id. at 117, 150 (“Selective enforcement claims
are especially common among minority homeowners facing suits brought by their HOA.”).
HOAs often function as “quasi-governmental” entities. Id. at 135-36. They are generally
founded under governing documents such as articles of incorporation, covenants, or bylaws—
similar to state governments being bound by their constitution or codes. Gemma Giantomasi,
Note, A Balancing Act: The Foreclosure Power of Homeowners’ Associations, 72 FORDHAM L.
REV. 2503, 2506 (2004). HOAs often provide public services to their members that might
ordinarily be provided by local governments. Culbertson, supra, at 118-19. HOA services can
include things such as trash collection or snow removal, maintenance of common areas, and access
to shared amenities. Id. at 119. Depending on its governing documents, an HOA’s authority can
range from being able to fine a resident for failing to comply with acceptable paint colors and
landscaping to being able to foreclose on a property due to an owner’s failure to pay their dues.
See id. at 119, 139-40, 155. Upon purchasing a home in a neighborhood with an HOA,
homeowners are typically required to become members and to be bound by the HOA’s governing
documents. See Giantomasi, supra, at 2508.
While “ ‘the advantages of private associations are their efficient decision making and the
responsiveness of the government to local concerns,’ ” there is also more limited oversight or
safeguards that can prevent abuses of authority and selective enforcement of HOA rules.
Culbertson, supra, at 119 (quoting Ron Cheung, Homeowners’ Associations and Their Impact on
the Local Public Budget, in MUNICIPAL REVENUES AND LAND POLICIES 338, 343 (Gregory Ingram
5
No. 61643-2-II
& Yu-Hung Hon eds., 2010)); see also Culbertson, supra, at 150; Jeffrey Kleeger, Liberty and
Separation of Powers in Judicial Review of Privatized Governance Regimes, 38 J. NAT’L ASS’N
ADMIN. L. JUDICIARY 57, 59-60 (2018).
III. THE COMMISSION’S COMPLAINT AND ITS DISMISSAL BY THE ALJ
Mitchell purchased a townhome in the Summerwalk Duets Development on January 1,
2020. The closing documents for the purchase required Mitchell to be bound by the development’s
HOA’s covenants, conditions, and restrictions (CC&Rs).
Eleven months after his purchase of the townhome, in November 2020, Mitchell made a
report with the Commission, which alleged that Summerwalk was discriminating against him on
the basis of his race through its enforcement of its CC&Rs. Following an investigation, the
Commission found “reasonable cause” to believe that Summerwalk had discriminated against
Mitchell; accordingly, after being unable to reach an agreement with the parties, the Commission
filed a complaint with the Office of Administrative Hearings. Admin. Rec. (AR) at 8.
The Commission’s complaint alleged that Summerwalk’s enforcement of the CC&Rs
against Mitchell “differed” from how it enforced them against the other homeowners and that he
was treated “worse” than white homeowners. AR at 17. The complaint further alleged that this
disparate treatment subjected Mitchell to “unwelcome conduct” and “a hostile living environment”
that “interfered with the enjoyment of his Townhome” and caused him both economic and
emotional damages. AR at 19.
As the case proceeded, the ALJ “developed concern” that the Commission and, by
extension the ALJ, lacked jurisdiction regarding the complaint. AR at 590. Following a hearing
set to consider the issue, the ALJ dismissed the Commission’s complaint, determining that the
6
No. 61643-2-II
alleged discriminatory conduct did not pertain to a “real estate transaction” as contemplated by
WLAD, and thus the Commission did not have jurisdiction to investigate it or bring its
enforcement action before the ALJ. AR at 591, 594.
The ALJ’s written order explained that an HOA’s failure to enforce its rules was not within,
nor sufficiently related to, the plain language definition of “real estate transaction” and thus failed
to fall within WLAD’s scope. The ALJ acknowledged that WLAD contains broad protections
concerning real estate transactions; however, it concluded that WLAD’s protections regarding real
estate transactions “do[] not reach subsequent use of the property.” AR at 594.
The Commission appeals.
ANALYSIS
The Commission argues that the ALJ erred in concluding that Summerwalk’s conduct “was
not connected with a real estate transaction” and thus was outside the Commission’s jurisdiction
to investigate. Opening Br. at 14. The Commission contends that WLAD’s plain language,
Washington case law, and persuasive federal case law interpreting the Fair Housing Amendments
Act of 19885 (FHAA) “all demonstrate that the WLAD covers discriminatory enforcement of HOA
rules against a homeowner after a home is purchased.” Opening Br. at 14. We agree.
5
42 U.S.C. §§ 3601-3619.
7
No. 61643-2-II
I. THE COMMISSION’S AUTHORITY TO INVESTIGATE MITCHELL’S ALLEGATIONS
As an initial matter, the Commission faults the ALJ for casting its decision as a matter of
jurisdiction rather than an issue about the merits. The Commission asserts that jurisdiction pertains
to only the type of controversy that it may investigate, not whether the claim will be successful.
We agree with the Commission.
The jurisdiction of an administrative agency differs from that of the superior court. While
the superior court has general jurisdiction to decide any justiciable controversy unless another
court has jurisdiction, an administrative agency “must act within the scope of its jurisdiction as
defined by the statute conferring authority upon it.” Compare RCW 2.08.010, with Smith v. Dep’t
of Licensing, 19 Wn. App. 2d 419, 427, 496 P.3d 1195 (2021), review denied, 199 Wn.2d 1013
(2022).
When determining whether an agency has subject matter jurisdiction over a particular
issue, we look at whether the case in question concerns the type of controversy contemplated by
the relevant statute. Singletary v. Manor Healthcare Corp., 166 Wn. App. 774, 782, 271 P.3d 356,
review denied, 175 Wn.2d 1008 (2012). The “type of controversy” refers to “the general category
of controversies [an agency] has authority to decide and is distinct from the facts of any specific
case.” Id. “ ‘[Agencies] do not lose subject matter jurisdiction merely by interpreting the law
erroneously.’ ” Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)
(quoting In re Marriage of Major, 71 Wn. App. 531, 534-35, 859 P.2d 1262 (1993)).
WLAD grants the Commission subject matter jurisdiction to investigate and adjudicate
alleged violations of WLAD, including those related to real estate transactions. See RCW
49.60.010, .120; Fraternal Ord. of Eagles, 148 Wn.2d at 237.
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No. 61643-2-II
Here, Mitchell alleged that his HOA was discriminating against him based on his race.
This complaint, being rooted in discrimination based on race and arguably involving a real estate
transaction, is within the type of controversy that the Commission has subject matter jurisdiction
to investigate. Even if it was later determined that the Commission’s investigation (or resulting
orders) was outside the scope granted by WLAD because Mitchell’s complaint was too attenuated
from an underlying real estate transaction, the dismissal of the claim would be based on the merits
(what is or is not sufficiently related to real estate transaction), not the Commission’s subject matter
jurisdiction. See Marley, 125 Wn.2d at 539 (explaining that “subject matter jurisdiction” means
that an agency has the power to issue a decision on a claim, even a decision that is later found to
be erroneous).6 Thus, the ALJ’s reliance on the absence of jurisdiction as the basis for its decision
was error.
If the ALJ had limited its decision merely to broad concepts of jurisdiction, we could end
our analysis here. However, as part of the ALJ’s misinterpretation of its and the Commission’s
jurisdiction, the ALJ proceeded to address the merits of whether Mitchell’s claim involved a “real
estate transaction” within the meaning of RCW 49.60.222 and RCW 49.60.2235. Thus, we
continue our analysis to address the question raised by Mitchell’s claim; that is, whether an HOA’s
discriminatory enforcement of its rules and covenants is prohibited by WLAD.
6
As we have recently noted, the term “jurisdiction” is one of “ ‘many, too many, meanings.’ ” which has led to inconsistent use of the term. Spanaway Concerned Citizens v. Pierce County, ___ Wn. App. 2d ___, 590 P.3d 1166, 1172 n.5 (2026) (Veljacic, J. concurring) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)). We use the term “subject matter jurisdiction” here consistently with the “ ‘rightfully sweeping definition’ ” of the term as discussed in Marley. 125 Wn.2d at 539 (quoting Major, 71 Wn. App. at 534-35).
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No. 61643-2-II
II. WHETHER WLAD PROTECTS AGAINST THE DISCRIMINATORY ENFORCEMENT OF HOA RULES
A. STANDARDS OF REVIEW AND RULES OF STATUTORY INTERPRETATION
1. Appellate Review of Administrative Actions
The Administrative Procedure Act7 governs judicial review of decisions made by an
agency or administrative board. RCW 34.05.510; Tapper v. Emp’t Sec. Dep’t, 122 Wn.2d 397,
402, 858 P.2d 494 (1993). The party challenging an agency’s actions bears the burden of
demonstrating that the action is invalid. Tafoya v. Hum. Rts. Comm’n, 177 Wn. App. 216,
222-23, 311 P.3d 70 (2013). “We may reverse an agency action if the agency erroneously
interpreted or applied the law, or if the order is not supported by substantial evidence.” Id. at 223.
We review whether the agency misinterpreted or misapplied the law de novo. Alstom Power, Inc.
v. Dep’t of Revenue, 26 Wn. App. 2d 36, 44, 525 P.3d 855 (2023).
2. Statutory Interpretation
Interpretation of a statute’s meaning or purpose is a question of law that we review de novo.
Rodriguez v. Zavala, 188 Wn.2d 586, 591, 398 P.3d 1071 (2017). The goal is to carry out the
legislature’s intent. Id.
When practicable, we must refer to a statute’s plain meaning as an expression of the
legislature’s intent. Associated Press v. Legislature, 194 Wn.2d 915, 920, 454 P.3d 93 (2019). A
statute’s plain meaning is discerned from “the text of the provision itself, the context of the statute
in which the provision is found, related provisions, and the statutory scheme as a whole.”
Rodriguez, 188 Wn.2d at 591. “We may not add words to a statute and must construe it in a way
7
Ch. 34.05 RCW.
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No. 61643-2-II
that gives effect to all the language within the statute.” Hum. Rts. Comm’n v. Hous. Auth. of
Seattle, 21 Wn. App. 2d 978, 985, 509 P.3d 319 (2022). “In undertaking this plain language
analysis, the court must remain careful to avoid ‘unlikely, absurd or strained’ results.” Burton v.
Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005) (quoting State v. Stannard, 109 Wn.2d 29,
36, 742 P.2d 1244 (1987)).
Only when a statute’s language is ambiguous and could be interpreted in multiple ways do
we turn to statutory construction, legislative history, and relevant case law to ascertain its meaning.
McClain v. State, 34 Wn. App. 2d 247, 266, 567 P.3d 1109 (2025). It is not enough that two or
more interpretations be “conceivable,” they must be reasonable and consistent with the statute’s
clear legislative purpose. State v. Brown, 194 Wn.2d 972, 976, 978, 454 P.3d 870 (2019) (holding
that defendant’s interpretation of the meaning of “when required” in the statute although
“conceivable” was unreasonable in part because it undermined the purpose of the traffic law and
public safety).
B. WLAD’S PLAIN LANGUAGE INCLUDES PROTECTION AGAINST THE DISCRIMINATORY
ENFORCEMENT OF HOA RULES AND COVENANTS
As relevant to this case, WLAD makes it unlawful to racially discriminate against someone
in the context of a real estate transaction. RCW 49.60.030(1)(c), (2). WLAD defines a “real estate
transaction” as one that “includes the sale, appraisal, brokering, exchange, purchase, rental, or
lease of real property, transacting or applying for a real estate loan, or the provision of brokerage
services.” RCW 49.60.040(22). This lengthy list of what constitutes a “real estate transaction” is
not a limitation; it is “illustrative, but not exclusive.” McFadden v. Elma Country Club, 26 Wn.
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No. 61643-2-II
App. 195, 201, 613 P.2d 146 (1980). Using this definition, WLAD makes it unlawful, in a
similarly expansive description, for any person
[t]o discriminate against a person in the terms, conditions, or privileges of a real
estate transaction or in the furnishing of facilities or services in connection
therewith[.]
RCW 49.60.222(1)(b) (emphasis added).
Here, the Commission argues that, especially given the legislature’s instruction that
WLAD’s provisions be “construed liberally,” the plain language of RCW 49.60.222(1)(b) “covers
post-sale enforcement of community rules by HOAs.” Opening Br. at 22. The Commission
supports its broad view by highlighting how the text of WLAD itself uses broad and inclusive
language when defining the scope of its protections in order to effectuate its purpose. It points
out, for example, that the definition of “real estate transaction” includes multiple examples of what
can constitute a real estate transaction but does not limit the definition to only those examples.
Summerwalk responds that the Commission’s position expands the scope of WLAD’s real
estate transaction provision beyond reason. Summerwalk contends that the scope of this provision
“ ‘does not reach beyond the acquisition of the property’ ” and “ ‘does not reach subsequent use
of the property.’ ” Br. of Resp’ts at 23 (quoting AR at 594). According to Summerwalk, an HOA’s
enforcement of its covenants well after the property sale “has no relationship to, effect, or impact
on the sale, purchase, appraisal, financing, brokering, or rental of [a] property” and “has no bearing
on one’s ability to engage in a real property transaction or access housing on equal footing as
others.” Br. of Resp’ts at 19. Summerwalk emphasizes that it was never a party to Mitchell’s
purchase of his townhome or any other type of real estate transaction with him, and “at best” its
subsequent enforcement of its CC&Rs was merely “a possible consequence” of the purchase itself.
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No. 61643-2-II
Br. of Resp’ts at 19. Boiled down, Summerwalk essentially argues that by the time covenants are
being enforced against the homeowner, the dust has long since settled on the underlying real estate
transaction.
We are persuaded by the Commission’s position. Resolving the plain meaning of WLAD’s
real estate transaction provision must be driven by the breadth of the statute. As noted above, both
our legislature and our Supreme Court have instructed that the provisions of WLAD must be
viewed broadly and given “liberal construction.” RCW 49.60.010; Jin Zhu, 189 Wn.2d at 614.
When we view the operative section with this lens, the breadth of the language is striking—
WLAD reaches discrimination “in the terms, conditions, or privileges of a real estate transaction
or in the furnishing of facilities or services in connection therewith.” RCW 49.60.222(1)(b)
(emphasis added). HOA’s covenant enforcement, both its privileges and burdens, having its roots
in the original real estate purchase transaction, meets this definition. Covenant enforcement is
plainly a “service in connection” with a real estate transaction—so long as a broad “liberal
construction” of the statutory language is used.
Moreover, we are unpersuaded that we should read into WLAD temporal limitations that
do not exist. See Hous. Auth. of Seattle, 21 Wn. App. 2d at 985. There is no language in WLAD
or RCW 49.60.222(1) that suggests that discrimination relating to real estate transactions must
occur either before or during the acquisition of property. Such a limited reading would not only
go directly against the legislature’s explicit instruction to construe WLAD liberally but would also
have the potential to bring about the “ ‘unlikely, absurd, or strained’ ” result of placing large swaths
of discriminatory conduct outside of WLAD’s protection. Burton, 153 Wn.2d at 423 (quoting
Stannard, 109 Wn.2d at 36).
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No. 61643-2-II
Here, Mitchell was bound by Summerwalk’s CC&Rs and subject to Summerwalk’s
enforcement powers as a direct result of his purchase of his townhome and the documents required
for that transaction. Because of this ongoing connection to his purchase, the HOA’s conduct was
within the furnishing of services in connection to a real estate transaction (Mitchell’s purchase of
his home). Accordingly, we hold that the plain language of RCW 49.60.222(1)(b) includes
Summerwalk’s enforcement of its CC&Rs against Mitchell.8
C. WASHINGTON CASE LAW AND APPLICABLE FEDERAL CASE LAW FURTHER SUPPORT OUR
CONCLUSION
1. Washington Case Law
Our conclusion that the Commission’s complaint is consistent with the plain language of
WLAD is in accord with other Washington cases, which have applied RCW 49.60.222 to a “broad
range of situations.” Hous. Auth. of Seattle, 21 Wn. App. 2d at 987.
For example, in McFadden, this court held that membership in a country club was a real
estate transaction where membership was required for a homeowner to access their property. 26
Wn. App. at 201. While the McFadden court acknowledged that membership to a country club
“is not a conventional ‘sale or exchange,’ ” it reasoned that the legislature intended RCW
8
The Commission also argues that Summerwalk’s alleged discrimination falls under the type of conduct prohibited by RCW 49.60.2235. RCW 49.60.2235 provides, “It is an unlawful practice to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, rights regarding real estate transactions secured by RCW . . . 49.60.222.” Because RCW 49.60.2235’s protections, in the context of this appeal, are entirely derivative of those in RCW 49.60.222, we focus our inquiry solely on interpreting RCW 49.60.222.
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No. 61643-2-II
49.60.222 “ ‘to cover every possible real property transaction without exception.’ ” Id. (quoting
Hum. Rts. Comm’n, Declaratory Ruling No. 9, 1 Hum. Rts. Rep. IC-11 (1974)).
Similarly, in Housing Authority of Seattle, Division One of this court also held that the
administration of Section 8 vouchers,9 “at the very least” is included in RCW.49.60.222(1)(b)’s
“ ‘service[ ] in connection’ ” to a real estate transaction because it “enables” a person to rent real
property (a real estate transaction). 21 Wn. App. 2d at 986 (alteration in original) (quoting RCW
49.60.222(1)(b).
Moreover, in Tafoya, this court addressed whether “the furnishing of facilities or services”
must be connected in time to the actual transfer of property in a real estate transaction. 177 Wn.
App. at 224. There, in the context of a lease, the court rejected the argument that the “services
connected” to the real estate transaction must be provided contemporaneously with the transfer of
property and held that RCW 49.60.222(1)(b) also protects against discriminatory conduct that
happens at any time during the term of the tenancy. Id. at 225. The court explained that a narrow
construction of the statute which included a temporal limitation “would create an absurd result that
could not have been intended by the legislature and that clearly defies the mandate to construe the
WLAD broadly to prevent discrimination.”10 Id.
9
“Section 8 is a federally funded program that provides residential rent subsidies to low-income tenants for securing rental housing on the open market.” Nichols v. Seattle Hous. Auth., 171 Wn. App. 897, 899, 288 P.3d 403 (2012).
10
Summerwalk spends much of its briefing relying on an unpublished decision, Branchick v. Melrose Station Homeowners’ Ass’n, No. 56999-0-II (Wash. Ct. App. Aug. 22, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2056999-0-II%20Unpublished%20Opinion.pdf. However, not only do we find Branchick unpersuasive because of its factual dissimilarities, we generally do not discuss unpublished decisions. GR 14.1(c) (“Washington appellate courts should not, unless necessary for a reasoned decision, cite or
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No. 61643-2-II
2. Analogous Case law under the FHAA
Our conclusion is also consistent with federal case law interpreting a federal statute that is
remarkably similar to WLAD—42 U.S.C § 3604(b) of the FHAA.
In the late 1960s, Congress enacted the FHAA to combat high rates of racial segregation
and unequal housing. Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S.
519, 528-30, 135 S. Ct. 2507, 192 L. Ed. 2d 514 (2015). The FHAA sought to ensure fair housing
throughout the United States and “ ‘provide[] a clear national policy against discrimination in
housing.’ ” Id. at 539 (quoting H.R. Rep. No. 100-711, at 15 (1988)). The United States Supreme
Court has said that the FHAA has a “ ‘broad and inclusive’ compass” and therefore is afforded
“ ‘generous construction,’ ” while its exceptions must be read narrowly. City of Edmonds v.
Oxford House, Inc., 514 U.S. 725, 731-32, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995) (quoting
Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 212, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972)).
In very similar language to WLAD, § 3604 of the FHAA specifically makes it
unlawful
to discriminate against any person in the terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of services or facilities in connection
therewith, because of race, color, religion, sex, familial status, or national origin.
42 U.S.C. § 3604(b).
discuss unpublished opinions in their opinions.”); Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 473, 45 P.3d 594 (2002) (“ ‘The reliance upon unpublished opinions is a dubious practice at best, and we decline the invitation under the present circumstances.’ ” (quoting State v. Sparkman & McLean Co., 16 Wn. App. 402, 406, 556 P.2d 946 (1976))). Accordingly, we do not further discuss it.
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No. 61643-2-II
Because § 3604 contains “virtually identical language” to RCW 49.60.222(1)(b), we may
look to federal cases interpreting it as guidance.11 See Hous. Auth. of Seattle, 21 Wn. App. 2d at
987 (noting that federal case law interpreting the FHAA was consistent with the court’s plain
language reading of RCW 49.60.222); Tafoya, 177 Wn. App. at 224 (“When interpreting
Washington law, we may look to the federal case law when a federal antidiscrimination law
contains the same protections and mandates the same broad construction.”).
In addressing the same issue before us in this appeal, multiple circuits have held that the
FHAA’s prohibition of discriminatory conduct extends beyond the timeframe of the acquisition of
property. See, e.g., Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690,
714 (9th Cir. 2009) (concluding that § 3604(b) applies to post-acquisition claims); Bloch v.
Frischholz, 587 F.3d 771, 779-81 (7th Cir. 2009) (HOA’s selective enforcement of its rules was
prohibited under § 3604(b) because the HOA’s “power to restrict [the] owners’ rights flow[ed]
from the terms of the sale”); Ga. State Conf. of the NAACP v. City of LaGrange, Ga., 940 F.3d
627, 631-32 (11th Cir. 2019) (rejecting argument that “§ 3604(b)’s reach is limited only to
11
Summerwalk urges us to reject the persuasiveness of federal case law by arguing that the FHAA provides broader protections than WLAD because it uses the term “sale or rental of a dwelling” instead of merely “real estate transaction.” Br. of Resp’ts at 25 (emphasis omitted). We disagree that this is a basis to reject the persuasiveness of this federal law. As highlighted by the Commission, WLAD defines a “real estate transaction” to include the “sale or rental of a dwelling” among a non-exhaustive list of many other types of transactions—making WLAD’s protections broader than those of the FHAA. Opening Br. at 35. Moreover, our Supreme Court has also stated that “[t]o the extent the WLAD differs from federal antidiscrimination statutes, this court ‘has almost always ruled that the WLAD provides greater . . . [antidiscrimination] protections than its federal counterparts.’ ” State v. City of Sunnyside, 3 Wn.3d 279, 317, 550 P.3d 31 (2024) (alterations in original) (quoting Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 491 n.14, 325 P.3d 193 (2014).
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No. 61643-2-II
discriminatory conduct that takes place prior to or at the moment of the sale or rental” because
“there is no temporally limiting language” in § 3604(b)).
For example, similar to Tafoya, in City of Modesto, the Ninth Circuit rejected the idea that
§ 3604 of the FHAA “differentiated between claims based on whether the alleged discrimination
occurred at the time of or after the acquisition of the housing.” 583 F.3d at 711. The Ninth Circuit
reasoned that such a limitation was both contrary to the plain language of the statute (and
subsequent regulations) and inconsistent with the legislature’s intent when enacting the statute. Id.
at 713. It explained that nowhere in the statute did it specify that discrimination had to occur at or
before the moment of sale. It reasoned that the language of § 3604 actually suggested the opposite:
The inclusion of the word “privileges” implicates continuing rights, such as the
privilege of quiet enjoyment of the dwelling. While defendants argue that “the
provision of services or facilities in connection therewith” refers only to services or
facilities provided at the moment of acquisition in connection with the sale or the
rental, this is hardly a necessary reading. There are few “services or facilities”
provided at the moment of sale, but there are many “services or facilities” provided
to the dwelling associated with the occupancy of the dwelling. Under this natural
reading, the reach of the statute encompasses claims regarding services or facilities
perceived to be wanting after the owner or tenant has acquired possession of the
dwelling.
Id. (Notably, RCW 49.60.222(1)(b) also includes the word “privileges,” barring discrimination
“against a person in the terms, conditions, or privileges of a real estate transaction . . . .” (emphasis
added)).
Additionally, the Ninth Circuit expressed concerns that “limiting the [FHAA] to claims
brought at the point of acquisition would limit the act from reaching a whole host of situations that
. . . would constitute discrimination in the enjoyment of residence in a dwelling or in the provision
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No. 61643-2-II
of services associated with that dwelling.” Id. at 714. The court described the harms that could
occur from such a narrow reading, warning that it
“would not violate § 3604(b) for a condominium owners’ association to prevent a
disabled person from using the laundry facilities or for a landlord to refuse to
provide maintenance to his Hispanic tenants. Similarly, it would not violate
§ 3604(b) for a landlord to sexually harass a tenant or to raise the rent of only Jewish
tenants. It would not violate § 3604(c) for a landlord to use racial slurs to or about
existing tenants or to spray-paint such a slur on an occupant’s door. Nor would it
violate § 3604(c) for a homeowners association to print up flyers denigrating a
particular resident due to her religious faith and post them throughout the
neighborhood.”
Id. (quoting Rigel Oliveri, Is Acquisition Everything? Protecting the Rights of Occupants Under
the Fair Housing Act, 43 Harv. C.R.-C. L. REV. 1, 32-33 (2008)).
The Eleventh Circuit reached the same decision in Watts v. Joggers Run Prop. Owners
Ass’n, Inc., 133 F.4th 1032, 1042-43 (11th Cir.2025). There, a woman sued her HOA for
discriminatory enforcement of its covenants based on her race. Id. at 1040. She contended that
following her purchase of the property, the HOA had harassed the woman and her family—limiting
access to HOA meetings, parking, and the property’s shared basketball court—to the point where
the woman “had no other option but to move . . . .” Id. at 1037-38.
The Watts court held that the HOA’s discriminatory enforcement of the HOA’s rules was
sufficiently related to the woman’s purchase of the home or the “provision of services or facilities
in connection therewith.” Id. at 1042-43; see also id. at 1037-38. It reasoned that the woman’s
access to HOA meetings and the building’s amenities was part of the “privileges, services, and
facilities” associated with the purchase of her home based on the rules of the HOA. Id. at 1043-44. These “contractual rights flowing from her HOA membership were ‘directly connected to the
sale’ of her home.” Id. at 1043 (quoting City of LaGrange, 940 F.3d at 634).
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No. 61643-2-II
These federal cases, construing “virtually identical language” to RCW 49.60.222(1)(b), all
provide persuasive support for our conclusion about the plain language of WLAD’s real estate
transaction provision.
CONCLUSION
In the end, we hold that Mitchell’s allegations against Summerwalk are broadly within the
type of controversy that the Commission has jurisdiction to investigate because they allege
discrimination based on a protected class and allege that the discrimination occurred in the context
of a real estate transaction.
We also hold that RCW 49.60.222(1)(b) includes discriminatory enforcement of HOA
covenants, even after the sale of property has concluded. This decision is supported by both the
plain language of the statute and the broader policy goals of WLAD. HOAs wield immense power
over homeowners that are subjected to their rules. With this power, there is the potential, like in
Watts, for an HOA to enforce its rules to the point where a person is constructively forced out of
their own property. 133 F.4th at 1038. If Summerwalk’s construction of WLAD (which would
limit protections to be only those actions temporally tied to the acquisition of property) was
adopted, “a whole host” of discriminatory conduct would fall outside the protections of WLAD.
City of Modesto, 583 F.3d at 714.
When Mitchell purchased his townhome, he was obligated to join his HOA and to become
subject to its CC&Rs. This created an ongoing relationship between Mitchell and his HOA, and
he received “services” from it on this on-going basis. Thus, although the HOA’s enforcement of
its covenants occurred after he purchased the home, this enforcement “flow[ed] from the terms of
the sale.” Bloch, 587 F.3d at 780.
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No. 61643-2-II
Accordingly, the conduct alleged by the Commission was sufficiently related to a real
estate transaction to meet the requirements of RCW 49.60.222(1)(b). We reverse the ALJ and
remand the case for further proceedings consistent with this opinion.
PRICE, A.C.J.
We concur:
MAXA, J.
CHE, J.
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