Do you think that you have a struggle convincing your homeowners that a small raise in homeowner association assessment fees is beneficial for the community? You should be very thankful that you do not manage or serve on the board of an association in the Palm Springs, California area where monthly assessment fees can run as high as $900 per month. While that amount is not uncommon in some condominium associations, in a homeowners association? Gasp! Although the assessments may cover such ‘country club’ amenities such as golf courses, gated entrances and lush landscaping in a dry climate, can you imagine trying to convince homeowners that those fees are reasonable and necessary?
Continue Reading Posted In Money Matters
In a recent decision [Houston v. Wilson Mesa Ranch Homeowners Association, Inc., 2015 WL 4760331 (D. Colo. August 13, 2015], the Colorado Court of Appeals held that an association’s covenants stating that homes could not be occupied or used for any commercial or business purpose did not prohibit a homeowner from renting out his property for short-term vacation rentals.
A homeowner in the community advertised and rented his home for rent through the VRBO website. In response to the homeowner’s actions, the association passed an amendment to its ‘administrative procedures’ prohibiting its members from renting out their properties for a period of less than thirty days without prior board approval and establishing a $500 fine for violations.
Continue Reading Posted In Covenant Enforcement , Covenant Enforcement , Governance , What the Courts Say
APCHA Hosting a Seminar on Covenant and Rule Enforcement in Aspen!
As the leader in providing educational opportunities for affordable housing and free market HOAs in Aspen and Pitkin County, the Aspen Pitkin County Housing Authority ("APCHA") will be hosting another free seminar on September 15th entitled: Covenant and Rule Enforcement in HOAs: What Boards and Homeowners Need to Know. Here's a description for the seminar:
What do you mean I can’t use my garage as a storage shed and have to park my car in it? You can’t tell me what I can and cannot do in my own garage!
There is no doubt about it, the enforcement of covenants and rules in HOAs can be a nightmare for HOA boards and homeowners. However, it doesn’t have to be that way! This class will focus on use restrictions found in the governing documents of your HOA, the obligation of your board of directors to enforce them, the obligation of homeowners (including members of the board) to comply with them, the importance of having use restrictions and rules which fit the priorities of your community, options which boards have for enforcement and related protections for homeowners. We will also make sure to cover the hot topics of restrictions on marijuana and dogs. This class will provide important information and is sure to be entertaining!
Date of Seminar: Tuesday, September 15, 2015
Time: 11:30 am to 1:30 pm
Location: Aspen City Council Chambers, located at 130 South Galena Street in Aspen
Presenter: Molly Foley-Healy, Esq.
For more information and to RSVP for this seminar, please call APCHA at 970-920-5050. We look forward to seeing you on Tuesday!Posted In Community Association News
WLPP Welcomes Kim Porter, Wendy Weigler and Myra Lansky!
Winzenburg, Leff, Purvis & Payne is pleased to announce that our good friends and colleagues Kim Porter, Wendy Weigler and Myra Lansky have joined our firm. Kim, Wendy and Myra are accomplished attorneys specializing in the practice of community association law and are outstanding additions to our law practice.
Kim Porter focuses on the transactional side of the practice by representing homeowners’ associations and condominium communities. While this is the mainstay of her legal work, Kim also practices real estate and business law and has experience in bankruptcy, collection, employment and administrative law – all areas that routinely impact community associations. Kim excels at counseling her community association clients on the diverse issues and challenges that associations face on a routine basis. Kim can be reached by phone at 303-863-1870 or via email at firstname.lastname@example.org.
Wendy Weigler has focused much of her community association practice on litigating, mediating and arbitrating numerous types of covenant enforcement, contract and collection issues for community associations. She has been successful in both state and federal appeals and has several published opinions. In addition to handling disputes for clients, Wendy looks forward to continuing the transactional side of her community association practice with WLPP, handling contract negotiations, document drafting and advising on general business matters. Wendy can be reached by phone at 303-863-1870 or via email at email@example.com.
Myra Lansky has limited her practice exclusively to community association law, representing homeowners’ associations and condominium communities. Myra is a fellow of the College of Community Association Lawyers, speaks frequently on community association issues and has regularly contributed to the Rocky Mountain Chapter of CAI’s monthly newsletter – Common Interests. While Myra is scaling back on her law practice, she will remain available to her clients. Myra can be reached via email at firstname.lastname@example.org.
Please join us in welcoming Kim Porter, Wendy Weigler and Myra Lansky to Winzenburg, Leff, Purvis & Payne!Posted In Community Association News
Declaration Amendment Petitions - Shall Means Shall!
Today, the Colorado Court of Appeals issued an opinion addressing the statutory declaration amendment process set forth in C.R.S. 38-33.3-217(7). This process allows community associations that have sought to amend their declaration, and received fewer approvals than required to amend the declaration outright, to obtain a court order that approves the amendment notwithstanding the vote result.
The statutory process is pretty black-and-white; if the Association complies with the statute's requirements and fewer than 33% of those entitled to vote file written objections, the court "shall" approve the amendment. "Shall" is mandatory, but some courts have declined to approve petitions notwithstanding this language.
In Centennial Ranch and Aspen Mountain Ranch Association v. Fuller et al., 14CA1326, the Court of Appeals held that when a court determines that a community association has met the requirements of Section 217(7), it errs if it denies the petition to amend. The Court of Appeals further determined that another community association case analyzing the substantive impact of an amendment did not expand the statutory criteria for the court's analysis of a petition to amend.
We have always considered the process in Section 217(7) be fairly straightforward, and are pleased to have a Court of Appeals decision that supports our analysis. It's more important today than ever to make sure your amendment process complies with the Section 217(7) requirements, and to make sure that you comply before you end up with insufficient voter turnout.Posted In What the Courts Say
We've written many times before that community associations are bound by the provisions of the Fair Housing Act. There is a lot of information available about the Fair Housing Act, who it applies to, what it takes to comply, and what the consequences are for failure to comply. Notwithstanding all of the available information, some communities and managers (and apparently their legal counsel) still don't "get it."
HUD recently announced a decision in connection with a complaint involving familial status. In the case, the association had rule in effect since 1998 known as the "children rule" which prohibited children from playing in the common areas. In July 2011, the association amended the rules to prohibit riding bicycles, tricycles, scooters, skateboards, skates and rollerblades; playing; picnicking; and sunbathing in the common areas.Continue Reading Posted In What the Courts Say
By now, we all know that prior to an association turning a delinquent account over for collections, certain procedures under CCIOA must be followed. One of those procedures is sending of a notice of delinquency to a delinquent owner that includes the following information: (1) the amount due with an accounting of how the total was determined, (2) a statement as to whether the opportunity to enter into a payment plan exists and instructions for contacting the community association manager and/or board member to enter into such a payment plan, (3) the name and contact information for the individual the unit owner may contact to request a copy of the unit owner’s ledger in order to verify the amount of the delinquency and (4) a statement that action is required to cure the delinquency and that failure to do so within thirty days may result in the unit owner’s delinquent account being turned over to a collection agency, a lawsuit being filed against the owner, the filing and foreclosure of a lien against the unit owner’s property or other remedies available under Colorado law.
Continue Reading Posted In Money Matters
In my first installment of this blog series entitled HOA Board Meeting Basics, I discussed whether the Colorado Common Interest Ownership Act ("CCIOA") or the Colorado Revised Nonprofit Corporation Act ("Nonprofit Act") require that members of an HOA be provided with notices of board meetings and agendas. In this installment of the series, I will discuss open board meetings in HOAs.
For most folks living in Colorado, our home is the biggest investment we will ever make in our lives. For those of us with a home in an HOA, we know that in addition to our normal obligations as homeowners, we must pay assessments for our share of the common expenses of the community and comply with the governing documents of our association.
Our HOAs are governed by boards of directors which have a great deal of authority over our how our communities are maintained, the fiscal health of our communities, how the governing documents are enforced and the overall culture of our communities. Since boards of directors have a great deal of power, it only makes sense that CCIOA requires that Board meetings be open to the members of the HOA or their designated representatives. Having open meetings provides members with an opportunity to see their boards in action and to observe the due diligence they engage in before making important decisions.Continue Reading Posted In Governance
Just last week, I had the privilege of teaching a class for the Aspen Pitkin County Housing Authority on HOA meetings. Since my friends in Aspen and Pitkin County had numerous and excellent questions relating to meetings, I thought it would be helpful to post a series of blog entries on HOA board and membership meetings. In order to avoid confusion, I will start this series of blog entries by addressing issues relating to HOA board meetings.
For those of you who follow our blog, you know that the Colorado Common Interest Ownership Act ("CCIOA") is the primary body of statutory law in Colorado that regulates HOAs. Since most HOAs are nonprofit corporations, when we are dealing with issues relating to governance, we must also look to the Colorado Revised Nonprofit Corporation Act ("Nonprofit Act") for guidance.
The first question I will address is whether HOA boards must provide notice of their board meetings to the members of their associations. Interestingly, CCIOA and the Nonprofit Act do not require that members of an HOA be provided with notice of board meetings. However, it is important to check out the bylaws for your association to determine whether the bylaws require that notice of board meetings be given to the members. If your bylaws require that notice be given to members, make sure to carefully follow the notice requirements outlined in your bylaws.Continue Reading Posted In Governance
New ADA Guidance on Service Animals for Condominium Hotels
As attorneys who specialize in the practice of community association law, we often hear folks talk about service animals and the Americans with Disabilities Act ("ADA"). What most folks don't understand is the ADA doesn't apply to private residential HOAs. Instead, the ADA requirements relating to service animals apply to HOAs that provide a place of public accommodation - like condominium hotels. These requirements will also apply to those HOAs which share amenities like swimming pools and open them up to the public.
It's important to note that associations which permit owners to privately rent their units would not be classified as a condominium hotel which would trigger application of the ADA. Instead, in order for the ADA provisions relating to service animals to apply, the HOA would need to have a room reservation system for renting out rooms or provide hotel-type services to short-term renters. If you are unsure whether the ADA applies to your HOA, please contact your legal counsel for guidance.
For private residential HOAs that are not required to comply with the ADA, the Fair Housing Act applies and regulates assistance animals in these communities in a more permissive way. Here's a link to more information on Fair Housing Act requirements relating to assistance animals.
So back to the ADA. The United States Department of Justice has just issued an updated Frequently Asked Questions about service animals and the ADA. In particular, the FAQ addresses issues relating to service animals being permitted into facilities in HOAs. For those condominium hotels in the mountains and across Colorado which must comply with these requirements, we think you will find the FAQ both easy to read and understandable.
Posted In From Capitol Hill/Legislation