Attention All Pitiful and Prolific Poopers!
I read this article in the Denver Post about a pet owner not picking up the poop of his Teacup Chihuahua in his HOA. This association has a rule requiring all owners to pick up after their pets and is utilizing doggie DNA to figure out which dog in the community left behind the droppings.
When enforcing this rule, does it matter whether your dog is a pitiful or prolific pooper? No! Poop is poop and HOAs should be consistent in enforcing this rule - regardless of the size of the dog or their droppings.
However, if your HOA is utilizing doggie DNA, please remember that under Colorado law your association must give the owner of the dog notice and an opportunity for a hearing prior to levying a fine. Here's a link to important information your association needs to know when enforcing covenants and rules.Posted In Covenant Enforcement
Funny story. A condominium association I represent is located in such a way that I could see their amenities – a small swimming pool and tennis courts – from my office window. One summer, the association was involved in some pretty contentious litigation over a serious, ongoing covenant violation. We were conducting depositions in my conference room and, during a break, the manager and I stepped into my office. I happened to glance out the window and noticed a dog running around on the pool deck. I pointed it out to the manager, he made a phone call, and we went back into the deposition. Later that day, the manager sent me this photo, which the dog’s owner had sent him by way of apology.
Continue Reading Posted In Covenant Enforcement
Mayor Murphy's Boondoggle Backfires
It was just over a year ago that Mayor Murphy led the charge for Metro Mayors by pushing through an ordinance that destroys the right of homeowners living in Lakewood to adequately pursue remedies for construction defects to their homes. Mayor Murphy argued that the right of HOAs, working on behalf of their homeowners, to hold builders responsible for their defective construction was hampering the development of condominiums in Lakewood and across Colorado. Mayor Murphy was adamant that his ordinance would spur condo development in Lakewood.
A year after Murphy was able to push through his "groundbreaking" ordinance, the Denver Business Journal has reported that Lakewood has not received even one application from a developer to build a condominium. While there has been talk by developers about building condos, no ground has been broken and no applications have been forthcoming.
Why is this? Because the worst kept secret about all of these ordinances is that they clearly violate home rule. In other words, the issue of how construction defects are addressed is an issue of statewide concern and is not unique to any particular municipality. As a result, state law is controlling on this matter and that law is Colorado's Construction Defect Action Reform Act ("CDARA").
No developer wants to get involved in protracted litigation over whether the Lakewood ordinance, or any other ordinance for that matter, is controlling and will trump CDARA. As more and more municipalities jump on the bandwagon to destroy homeowner rights, they are proving that construction defects are an issue of statewide concern. What developer would want to get involved in litigation on home rule that they have no hope of winning? This is why Mayor Murphy's ordinance hasn't been the panacea that he so proudly proclaimed for condo construction.
Does CDARA need to be fixed? Yes. However, it must be fixed in a fair and balanced manner which does not destroy the rights of homeowners living in HOAs and is not unfair to developers. It's time for the Metro Mayors Caucus and the Denver Chamber of Commerce to sit down with all of the stakeholders to discuss common sense approaches to fixing CDARA and spurring condominium construction. It is also time for the Metro Mayors to stop buying into the spin and to embrace and protect the rights of the citizens living in their communities.
Posted In From Capitol Hill/Legislation
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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