Our Move is Finally Here!

On Friday, October 23rd, we will be making the move to our new offices located at 8020 Shaffer Parkway, Suite 300 in Littleton, Colorado!  In order to facilitate our move, we will not have phone or email service on Friday.  While we regret any inconvenience this may cause, we will be back up and running normally on Monday.

As a reminder, our telephone (303-863-1870) and fax (303-863-1872) numbers will remain the same. 

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We're Moving and Taking You With Us!

Our law firm is moving to new offices this month and we promise to take you with us!  Beginning on Monday, October 27th, our new address will be: 

Winzenburg, Leff, Purvis & Payne

8020 Shaffer Parkway, Suite 300

Littleton, CO 80127

 

Our telephone number will remain the same – (303) 863-1870

 

On Friday, October 24th, our computer and telephone systems will be down as we make the actual move. We apologize in advance for any inconvenience and will be back up and running the following Monday.

 

After the first of the year, we will be holding an Open House and look forward to showing you our new digs! 

Attorney Stephane Dupont makes his new Littleton office a little more like home.

 

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They Aren't As Bad as You Might Be Lead to Believe

We all know that everybody hates their homeowners association - or do we? Many people might be surprised, particularly those who do hate their associations and think that everybody thinks the way they do, and maybe our state legislators, who tend to hear the complaints but not the good stories. Whatever the case may be, apparently not everybody hates their homeowners associations - far from it. A recent survey conducted by Public Opinion Strategies finds that 90% of people rate their overall community association experience as positive; 90% of people say the association's board members "absolutely" or "for the most part" serve the best interests of the community; 92% say they are on friendly terms with their association boards; 83% say their community managers provide value and support to residents and their associations; 88% of residents who had direct contact with their community manager say it was a positive experience. Here is a copy of the survey results.

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Community Association Managers - Topics to Study for Colorado Law Test

Community Association managers in Colorado know that licensure is just around the corner.  Beginning on July 1, 2015, every community association manager in Colorado must be licensed by the Colorado Division of Real Estate.  Part of the licensure requirement is that managers must pass an examination that tests their basic understanding of applicable provisions of Colorado law.  However, what topics could actually be on the Colorado law examination have remained a mystery - until now.

The Colorado Division of Real Estate has posted the areas of Colorado law, and some federal law, that managers should study to prepare for the exam.  Here is the list of topics published by the Division.  However, don't let this list freak you out!  Winzenburg, Leff, Purvis & Payne is presenting free teleconferences for managers held during lunch for the purpose of helping you prepare for this exam. 

If you aren't already participating in these classes and would like to sign up, please email Allison Grout to register for the classes at agrout@wlpplaw.com.  Our next class will be held October 8th from noon to 1:00 pm on covenant enforcement.  Don't miss out on these great opportunities to prepare for the exam a little bit at a time!

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Manager Class on Board Meetings Rescheduled for Wednesday, July 16th

The community association manager class presented by Winzenburg, Leff, Purvis & Payne, which was originally scheduled for this Wednesday (July 9th), has been rescheduled for Wednesday, July 16th at noon.  We hope you will join us next Wednesday for "Everything you need to know about Board of Directors Meetings."  If you have not already signed up attend this free teleconference class on Colorado law, please contact Allison Grout at agrout@wlpplaw.com.

We look forward to talking with you next Wednesday!

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Don't Miss Out - Sign Up Today!

Have you signed up for our free manager classes on Colorado law yet?

As previously blogged by Lindsay Smith, Winzenburg, Leff, Purvis & Payne, LLP is offering free lunchtime teleconference classes for community association managers designed to help prepare managers to take the Colorado law portion of the licensing examination.  The next class is scheduled for July 9, 2014 at 12:00p.m. and the topic is “Everything you need to know about Board of Directors Meetings.” 

The class will be taught by Molly Foley-Healy, a partner at Winzenburg, Leff, Purvis & Payne.  Molly actively teaches classes to managers and board members on topics ranging from legislative updates to complying with CCIOA to effective governance. Molly is also the Chair of CAI’s Colorado Legislative Action Committee and is the author of The Capitol Chronicles column in the Common Interests magazine.

Don’t miss out on this great opportunity to get ahead of the curve in preparing for the Colorado law portion of the licensure exam before the new law takes effect on July 1, 2015! 

 

Should you wish to participate in these teleconferences, please contact Allison at agrout@wlpplaw.com.

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Family Friendly Rules

Earlier this month the Department of Housing and Urban Development (HUD) announced that it had reached a settlement with an apartment complex in the Denver Area for rules that discriminated against familial status under the federal Fair Housing Act (FHA). Readers of this blog will be aware that the FHA applies to residential community associations too, and this offending rule wouldn’t look out of place in many common interest communities:

"All children must be supervised by an adult at all times while playing outside. No sports activities, skateboarding, roller-blading, or general extracurricular activities are to take place in our community.  If we see anyone violating any of the above activities or see any unsupervised children they will be sent home immediately."

The settlement required the rules above be amended, that the apartment owner build a $10,000 playground, and that all employees of the apartment complex owner attend fair housing training within one year.

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Free Manager Classes from WLPP!

Winzenburg, Leff, Purvis & Payne, LLP is pleased to announce free lunchtime teleconference classes for community association managers designed to help prepare managers to take the Colorado law portion of the licensing examination. While community association managers will not be required to be licensed until July 1, 2015, now is the time to start preparing for the examination on Colorado law. 

Instead of sitting through an all day class on Colorado law, our program is designed to break down key components of Colorado law into manageable classes. The classes are designed to be one hour in length and no travel is required to attend them! We will also be seeking CMCA credits from CAMICB (previously known as NBC-CAM) for these free classes.

Please contact Allison at agrout@wlpplaw.com to RSVP and be put on the list for additional information.

Class

Date

CCIOA/Pre-CCIOA

5/14/2014

Responsible Governance

6/11/2014

Meetings

7/9/2014

Voting

8/6/2014

Action without a meeting

8/27/2014

Collections

9/10/2014

Covenant Enforcement

10/8/2014

Records

11/12/2014

Public Policy

12/10/2014

Energy Efficiency

1/7/2015

OTARD

1/28/2015

Fair Housing/ADA

2/11/2015

Insurance Basics

3/11/2015

Declaration Amendments

4/8/2015

Annual Disclosures

5/13/2015

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Merry Christmas and Happy Holidays from WLPP!

Covenant enforcement usually ramps up in our office in the spring, but we often receive phone calls from managers and Board members regarding holiday displays.  From elaborate constructions of holiday cheer to somewhat less friendly displays, we see just about everything.  A few reminders when considering whether the displays in your neighborhood are enforcement-worthy:

Do you have the power?  Check your documents.  If they do not provide limitations, it's probably a bad idea to start imposing them on Christmas Eve.

Are you targeting someone because of personal beliefs?  Stop it.

Don't be a Grinch.  If your association provides clear rules and regulations governing holiday light displays, you can enforce any violations after the holiday season.  If you don't like the Griswold house down the street, calm down, drink another glass of eggnog, and remember - it will all be over soon!

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Association is all Tricks, no Treats

Yet another homeowners association has found itself in hot water for potential violations of federal fair housing laws.  East of San Francisco, the Tennis Villas at Blackhawk association barred children from trick-or-treating at Halloween.  While the community is gated and "upscale," an upscale community does not have the right to adopt policies that have a disparate impact on a group due to familial status.

Here, by adopting a policy that essentially only affects families with young children, the association is discriminating against those families.  According to the article, the association even prohibits children from playing on common areas!

This is a bad policy decision that could have been avoided if the association had sought legal counsel before its adoption.  While there are always two sides to a story, it sounds like the association needs to change its policies - yesterday!

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Solar Panels and Safety

A recent Fox News article brought to light a danger many people had not considered when looking to install solar panels on their roofs - the weight and electricity of solar panels can put fire fighters in danger when they try to put out flames.  While solar panels and alternative energy are encouraged in Colorado, and covenants that effectively prohibit or restrict installation of solar are void and unenforceable, associations can impose reasonable restrictions for safety and aesthetics. 

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Move That Car! Final Proposed Towing Regulations Clarify HOA Towing Authority

Last Friday afternoon an Administrative Law Judge ("ALJ") at the Colorado Public Utilities Commission issued revised proposed towing regulations. The Towing Carrier Rules start on page 57 of this document. This updated version of the proposed regulations is not nearly as onerous for community associations as the first version that was introduced back in January. For example, this latest version of proposed regulations does not require associations to post signs every 10 feet in their parking lots and allows associations to continue making towing carriers their authorized agents. In fact, the ALJ's revisions to the proposed rules seem to have accounted for most of the concerns expressed by members of the Community Associations Institute. As an added bonus, these new regulations will clarify the proper signage for giving notice prior to authorizing nonconsensual tows from residential parking lots.

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How to Avoid Sunshine in Florida

I think I'm pretty spoiled.  I only have to deal with bad weather when I choose to.  My garage at home is attached, and my garage at work occupies the lower levels of the building.  Sometimes I forget a jacket on winter days and don't realize it's a problem until I have to go outside.

Condominium owners in Florida can soon be just as spoiled as I am.  A new condominium development will offer car elevators and two-to-four car indoor garages that allow owners to park their vehicles on the same floor as their unit - some as high as the sixtieth floor.  Finally, Floridians can spend millions of dollars to avoid the same sort of weather I bask in all summer!

While the building and its concept are certainly extravagant, it's an exciting sign for those of us who are closely involved in condominium construction and sales.  It certainly shows that money is flowing more easily than in the past few years, if millionaires can move to Florida to avoid northern winters, and buy a dream condominium that allows them to avoid southern summers!

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Get Charged Up! Electric Vehicles Coming to a Neighborhood Near You

Governor Hickenlooper signed SB13-126 into law today, requiring community associations to permit owners to install Type 1 and Type 2 electric vehicle charging stations on their lots and on limited common elements designated for an individual owner’s use. SB13-126 adds Section 106.8 to the Colorado Common Interest Ownership Act and states the following reason for the legislation:

The primary purpose of this section is to ensure that common interest communities provide their residents with at least a meaningful opportunity to take advantage of the availability of plug-in electric vehicles rather than create artificial restrictions on the adoption of this promising technology

By M.O. Stevens (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0-2.5-2.0-1.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Continue Reading Posted In Community Association News , From Capitol Hill/Legislation , Your Governing Documents
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How to be a Grinch

I'll admit it, I'm something of a Grinch.  I'm just not very good at putting up the holiday decorations that so many other people do so well.  My neighborhood is having a holiday light competition.  I haven't managed to put up any lights, but if I were to put up anything, it would look like the house on the right:

The Armstrong family of Wellington's house would look more like the one on the left - if they decided to go "low key."   The Armstrongs have a tradition of an extraordinarily elaborate display, combined with holiday cheer for passersby and charitable giving for those less fortunate.  The Fort Collins Coloradoan recently reported on their struggle to keep their light display in spite of their homeowners association's objection.

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Foreclosures and Liens - Some Basics

I recently worked with a client who had purchased a property at the sheriff's sale on a homeowners association lien.  We frequently take properties through this kind of judicial foreclosure, and so from my perspective, everything was pretty cut and dry.  The client had a lot of questions, and I found myself discussing some basic rules of real property law.  Today, I found this article about a purchaser of a property foreclosed on by an HOA, and decided it might be appropriate to set out some general information about liens and the effect of foreclosure.

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After a Tragedy, the Inevitable Search for Deep Pockets

After the shooting of Travon Martin in February, association lawyers discussed the possibility that the Retreat at Twin Lakes Homeowners Association could face liability for the actions of George Zimmerman, a member of the HOA's neighborhood watch.

It appears that Martin's family will be making a claim against the HOA's insurance policy, asserting they are owed at least $75,000.00.  This indicates the Martins may intend to file a federal court suit against the insurance company.  The policy's limit is $1,000,000.00, but the big issues will be whether the policy provided coverage at the time of the shooting, and whether it covers the shooting at all.

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Guest Commentary in Denver Post Supports Manager Licensure

The Denver Post ran a Guest Commentary this morning from Chris Pacetti the Co-Chair of the Manager Licensure Task Force of CAI’s Colorado Legislative Action Committee ("CLAC"). The Guest Commentary outlines the reasoning behind the submission of the Sunrise Application for manager licensure and makes the case for the regulation of community association managers. 

We expect a report to be published by the Colorado Department of Regulatory Agencies as early as tomorrow on whether the Sunrise Review supports the need for the licensure of community association managers in Colorado. Upon publication of the report, CLAC will provide an update to members of CAI on the recommendations contained in the report and any related next steps.

 

We will also be providing timely updates on this blog. Stay tuned! 

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Open Forum in Denver Post: Fresh Perspective on HOA Issues From a Manager

In The Open Forum today in the Denver Post, the following letter was published which gives a fresh perspective on why problems arise in HOAs. 

"RE: "HOA house may get put in order." February 13th news story.

     We agonize about students who can't read.  What about adults who won't read?  A large proportion of homeowner complaints would never occur if the homeowner would have read the covenants and rules before he bought his home.  Our governing documents are written in clear language, are extensive, but easily understandable.  Nevertheless, as an experienced HOA manager, I daily confront homeowners (often holding one or more college degrees) who announce, "Well, uh, I thought those 'papers' weren't important."

     Most complaints arise from the homeowner's failure to understand that he surrenders some of the freedom he'd enjoy in a detached home in exchange for the benefits of a covenant controlled community."

                                                                                                            Steve Susman, Denver

I thought Mr. Susman's comments were worth passing along, since we rarely see this perspective reported in the media. 

 

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A Mountain Community Perspective on Manager Licensing

The past week has been a busy news week for HOAs in Colorado. The trend continues with a column about community association manager licensing in today's edition of the Snowmass Sun. Columnist Barbara Lucks describes how the role of community association managers is different from that of other property managers as she makes the case in support of manager licensing.

Do you think Ms. Lucks presents good arguments in favor of manager licensing?

By March 2nd, we will know whether Colorado's Department of Regulatory Agencies (DORA) agrees with Ms. Lucks. We will report on DORA's findings as soon as the information is available. Check www.cohoalaw.com -- or subscribe to our email notifications -- to receive timely updates on this topic and other issues affecting HOAs in Colorado. 

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Denver Post Covers Impact of FHA Certification on Condo Market

On Sunday, the Denver Post ran a story addressing the impact of FHA certification of condominium projects on the sale of units in those projects. The story, entitled Condos’ lapsed approval may slam door on future sales, touched on just a few of the challenges condo associations are facing in obtaining certification - including assessment delinquencies and the number of owner-occupied units.   

Following the meltdown of the real estate market, HUD undertook an overhaul of the requirements that condominium associations must comply with in order for their condo projects to become FHA certified. This certification makes it possible for some purchasers of units in those associations to qualify for FHA-backed loans. 

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The Twelve Days of Christmas - HOA Style

Merry Christmas and Happy Holidays from everyone at Winzenburg, Leff, Purvis & Payne!

On the first day of Christmas my HOA gave to me written approval for my pear tree.

On the second day of Christmas my HOA gave to me, two pooper scoopers and written approval for my pear tree.

On the third day of Christmas my HOA gave to me, three French drains, two pooper scoopers and written approval for my pear tree.

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Mark Payne Admitted to the College of Community Association Lawyers

Winzenburg, Leff, Purvis & Payne (“WLPP”) is proud to announce that Mark Payne has been admitted to the CAI College of Community Association Lawyers (“CCAL”). As the only new member of CCAL from Colorado, Mark joins a prestigious group of CAI member attorneys who have distinguished themselves through contributions to community association law and who have committed themselves to high standards of ethical conduct.

Admission into CCAL is challenging and requires a commitment to the practice of community association law and the association industry. Here are just a few of the requirements which must be met for admission to CCAL:

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October 2011 Foreclosure Statistics: Good News for Colorado HOAs?

 The Colorado Division of Housing releases monthly statistics which track foreclosure filings and sales in Colorado. The October 2011 statistics reflect the good news that foreclosure filings are down as compared to data collected for October of 2010. Whether this positive trend will continue – remains to be seen. Here are the October findings by the Division:

● Both foreclosure filings and sales at auction were down in October 2011 when compared to October 2010.

 

● Comparing year-over-year from 2010 to 2011, foreclosure filings in October decreased 23.2 percent with totals falling from 3,059 to 2,350.

 

● October 2011 foreclosure sales (completed foreclosures) were down compared to October 2010 with a decrease of 28.3 percent from 1,308 to 938.

 

● Filings rose to the second-highest filings total reported in 9 months, but were down 3.3 percent from September’s total. Foreclosure sales at auction fell to the lowest total recorded since April 2008.

 

● In year-to-date comparisons, comparing the first ten months of 2010 with the same period this year, foreclosure filings were down 29.3 percent and sales at action were down 22.6 percent.

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Homeowners Associations and Bullying

Bullying is a huge headline lately.  Lady Gaga is starting a foundation to fight the problem, the government's involved with www.stopbullying.gov, and there are hundreds of news articles every week on the subject.  Bullying is pervasive and infects every area of life.  As an association attorney, I see bullying every day.

Sometimes the bully is a board member, refusing to allow other board members or association members the right to speak and discuss a subject.  Other times, the bully is a homeowner who has a personal issue with another homeowner, and brings the association into that conflict. The bully can also be a homeowner who disagrees with association policy, and disrupts meetings in an attempt to assert his position.

I know a lot of people probably figure I'm a bully - after all, I'm the attorney who tells you to take down your tree house and that you have to re-paint your purple trim white.  Surprisingly, lawyers get bullied too.  We've received simple death threats, insults about our practice, professionalism, intellect, and personal grooming, and even threats of biological weapons.  A homeowner once chased one of our attorneys with a machete.  A lawyer involved with the widespread association fraud in Nevada was found severely beaten yesterday.  It is not clear whether the beating was related to his involvement in the fraud, or just his graduation from law school.

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Colorado Gazette Weighs In On Manager Licensure

The Side Streets column in the Colorado Gazette today covered the Sunrise Application that has been filed with the Colorado Department of Regulatory Agencies to determine whether the licensure of community association managers in Colorado is necessary. The article highlights the thoughts of veteran association manager Michelle Green who manages the Flying Horse Homeowners Association.

Like many other managers who have taken the initiative to become educated in the complexities of managing HOAs, Ms. Green is concerned that virtually anyone in Colorado can become a community association manager. “Anybody can hang a shingle on a door and call themselves a management company with no previous experience,” Green said. “They’ve got the checkbooks for the associations. They are doing the financials. They should be monitored so associations don’t lose money or get embezzled.”

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So You've Got a PR Disaster...Now What?

A Parker couple recently made the news after an unknown person spray painted offensive language on the couple's garage, and left a noose on their front porch.  The couple, Aimee Whitchurch and Christel Conklin, rent a unit at a condominium development in Parker.

It is never good news when your association makes the news for a hate crime.  Aimee and Christel have been on most local stations, and their story is being picked up by blogs everywhere (including this one).  While the individual who vandalized the unit is the person ultimately responsible for the crime, the couple's homeowners association is feeling heat as well.

When I saw video of the garage after someone covered the offensive language, I groaned to myself.  This screen capture, taken from KWGN News, shows a sloppy attempt to hide the offending words. 

Unfortunately, the white primer does little more than to highlight the crime.

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HOA or Big Brother? They're Both Watching You!

The Community Association Institute has an annual Law Seminar that many of our attorneys like to attend.  It allows us to get out of the office, meet with colleagues in a less formal environment, and earn our annual continuing legal education credits with courses specific to our field.  This year, the Law Seminar was in Las Vegas, at the Venetian.  One thing I noticed was the presence of cameras everywhere.

 Apparently, in Las Vegas, everything is under surveillance.  A Las Vegas-area homeowner recently received a violation notice for a car parked in front of her property.  The only problem – it wasn’t her car.  The management company alleged that they had her home “under surveillance” and had seen someone park the offending car and enter the property.

 

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Nevada HOA Fraud - Could it Have Been Avoided?

In March, Molly Foley-Healy blogged on the Nevada crime ring that conspired to steer homeowners associations to certain law firms and contractors in exchange for kickbacks.  On Tuesday, one of the "hired" Board members pled guilty to one count of conspiracy to commit mail and wire fraud.

Darryl Scott Nichols used funds from other conspirators to become a strawman purchaser, and eventually was elected to the Boards of Directors of two different condominium associations.  As a Director, Nichols used his influence to send association business and money to other parties.  These parties compensated Nichols for his assistance, a fatal conflict of interest.

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FHFA Goes After Financial Firms for Bad Mortgages

The Wall Street Journal has just reported that the Federal Housing Finance Agency ("FHFA") has filed "lawsuits against 17 of the nation's largest banks over soured mortgage bonds, aiming to recoup billions of dollars in losses from failed investments."  The lawsuits focus upon securities "based on subprime and other risky loans that were originated by mortgage companies, packaged by Wall Street firms, and then sold to investors."

As you know, HOAs have also been hammered by foreclosures resulting from marginal loans made by some lenders.  Unfortunately, we don't have a federal regulator to go to bat for us to recover the ghastly amounts of unpaid assessments resulting from these foreclosures!     

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Celebrity Justice, HOA-Style

According to the celebrity gossip website TMZ.com, Chris Brown's condominium association wants his probation revoked.  As you may recall, Mr. Brown plead guilty to assaulting his ex-girlfriend, singer Rhianna, and as a result was sentenced to five years of probation.

A condition of Brown's probation is that he will obey "all laws."  This seems like a pretty broad requirement - I mean, do they have a LoJack in his car to make sure he doesn't go three miles over the speed limit?  What if he removes the tag from a mattress?

Brown's condominium association alleges he is a nuisance, playing loud music, parking in handicapped spaces, and vandalizing association property.  The association thinks that Brown's probation should be revoked because he isn't obeying "all laws."

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Place An End To Bank Owed Debt!

As a result of increasing numbers of foreclosures, associations now have to deal with collecting delinquent balances against not only its individual homeowners but also against the foreclosing lenders/banks. With the sheer number of foreclosures that any given bank must deal with, a depressed economy and a saturated and slow moving real estate market, it is currently not uncommon for banks to retain ownership of a property following a foreclosure sale for up to a year or more. I am not aware of many associations that can carry that kind of debt for such an extended period of time.

Continue Reading Posted In Community Association News , Governance , Money Matters
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Collections: Are you following the rules?

It’s important that associations follow their governing documents and understand the procedures they should follow when dealing with collection of assessments, fines and other fees. The easiest way to do this is to review the association’s governing documents and the relevant provisions having to do with collections of delinquent accounts. This is especially important should the file proceed to court as a judge will review the case to determine whether the association followed its own rules before finding against a homeowner who did not. 

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S&P Downgrades Fannie and Freddie: Detrimental Impact on Condominium Associations?

CNNMoney has just reported that Standard and Poor’s Rating Services (“S&P") has downgraded the credit rating of Fannie Mae and Freddie Mac from a triple A rating to AA+. As you know, Fannie and Freddie fuel home sales by purchasing mortgages from lenders. What impact, if any, will this have on the sale of units in homeowners’ associations and in particular condominium associations? Only time will tell. Let’s just hope this latest turn of events doesn’t lead to even more unrealistic and counterproductive government regulation of condo associations. 

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Ruling Out Diapers Could Really Stink for Your Association

Yesterday, Molly Foley-Healy wrote about community association rules and evaluating whether your association’s rules and restrictions fit your community. Making your rules and regulations fit your community is only one step in the process of reviewing and revising board-adopted rules and regulations. What if your rules are illegal?

One condominium association in Canada was recently ordered to pay a former owner $10,000 for prohibiting the owner’s young daughter from swimming in the association’s pool. The association’s rules prohibited any child under the age of 2 from using the pool. Even though the rule at issue may have fit the community, which apparently consists of many owners or residents over the age of 65, the rule violated the Canadian fair housing laws because it discriminated based on familial status. Similar fair housing laws apply to Colorado community associations.

Continue Reading Posted In Community Association News , Covenant Enforcement , Governance , Your Governing Documents
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Breckenridge Condominium Association Goes Solar to Heat Water

SummitDaily.com has reported on a condominium association in Breckenridge that was thinking outside the box when considering renovation options for the community.  As part of the renovation project, the Longbranch Condominium Owners Association (“Association”) was looking at replacing the Association’s boilers. 

In researching options for heating water, the Association worked with a team of three companies (Mech Tech, RE-Align and Sunshine Solar) to create and install a solar thermal supplemental hot water system. This system will provide about 75% of the hot water utilized by residents in the 60-unit Association. In addition, excess hot water will supplement the pool, sauna and hot tub.

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"She said I want to walk away and start over again...."

The Denver Post recently ran an opinion piece about underwater homeowners who decide to walk away from their obligations entitled "The Wisdom of Walking Away From Your Mortgage."  In one case, the owner - who made a $100,000 annual salary and invested in multiple real estate clubs - walked away from his $435,000 mortgage to rent a less expensive property.

The tone of the piece indicates some owners believe they are entitled to walk away from a bad bargain because so many banks took bailout money.  It neglects to acknowledge that many banks did not take bailout money, but are still being lumped together with the evil corporate behemoths that did.   The sense of entitlement that permeates the article is offensive to anyone who still believes that parties should abide by the agreements they make.  Perhaps I'm old fashioned, but as a lawyer, and as a community association lawyer with an emphasis in covenant enforcement, I tend to think that contracts are a good thing that should be respected by both parties.

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Crazy Cat Lady or Loving Animal Caregiver?

Suzanne Leff and I have had a heated discussion this afternoon regarding the issues of animal hoarding, stray cats, and an Association's related responsibilities and powers.  We were inspired by this story, in which a "cat lady" defeated her HOA's notices of violation.  The cat lady provided food and shelter to stray cats, and had been doing so for several years - with the Association's knowledge and consent.

The Association then determined that the stray cats she fed and sheltered constituted a nuisance and that she was feeding wildlife in violation of the covenants.  In addition, she'd erected a small feeding structure in violation of the covenants.  After multiple hearings, the Association backed down from its position, creating a victory for feral cat lovers everywhere.

Suzanne Leff is somewhat heartless and thinks the Association should not have permitted the cat lady to continue her feline-atarian activities.  Gina's primary concern is whether the cats have assets that could be collected in the event the cat lady fails to pay her assessments.

I take a different perspective.  This is yet another case of an overbearing HOA dictating what owners can and can't do on their own property.  The cat lady's actions ultimately save lives, decrease governmental spending on animal shelters, and provide an endless supply of lolcat pictures.

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Solar Garden Community Interest Meetings in Summit County

We are following up on our previous posting regarding solar gardens. Solar gardens offer condominium owners an option for receiving many of the same benefits of solar panels otherwise reserved for single family homeowners and townhome owners. Innovative Energy is hosting two community interest meetings in Summit County to discuss the details of a possible solar garden and gauge community interest. The information for the meetings is as follows:

 

  • August 1, 2011 at 5pm at Mi Casa in Breckenridge
  • August 2, 2011 at 5pm at Island Grill in the Frisco Marina

 

Please contact our firm or Innovative Energy with any questions regarding these meetings.

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Chest Bumping and Excessive Splashing

A condominium association in Jeffersonville, Indiana is facing litigation after an elderly resident assaulted an association employee.  Seventy-two year old Betty Haley tried to chest bump (really!) employee Reid Blasi out of her way when he blocked her exit from the pool at the Harbours Condominiums.  You can see the video here.

In response to the chest bump, Mr. Blasi pushed Ms. Haley backwards into the pool.

Big mistake.

Ms. Haley had previously been banned from the pool for "excessive splashing," but continued to use the facilities.  As an aside, what can a 72-year-old woman do that constitutes excessive splashing?  Were the other people at the pool upset they were getting wet?  When does splashing cross the line from enthusiastic to excessive?

To top it all off, mysterious posters of Ms. Haley with sketched-in devil horns have appeared throughout the condominium, calling for her "dead or alive - preferably dead."

We can't make this stuff up.

Banned for excessive splashing (and being the Prince of Darkness).

 

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Your HOA Can't Stop You From Installing Solar Panels - But it Can Stop the School District!

As regular followers of this blog are aware, Colorado homeowners associations cannot effectively prohibit the installation of renewable energy devices on individual homes and units, although they can impose reasonable restrictions on the devices.  Molly Foley-Healy addressed this matter in detail back in May.

Today, the Denver Post published a story about the Acres Green Homeowners’ Association and its fight against the Douglas County School District’s attempt to install solar panels on the ground near Acres Green Elementary.  The Association argued to the Douglas County Planning Commission that the solar panels would constitute a potentially dangerous eyesore, and the problem could not be effectively mitigated by screening the panels from view.  The School District could not install the panels on the school’s roof because, after contracting for this installation, it was determined the roof couldn’t support the project.

Not in your backyard? Hope your HOA agrees...

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City of Oak Park Could Jail Gardener

As I was perusing news headlines this morning, I came across an article from Time Moneyland about the City of Oak Park in Michigan. As a Michigander myself, this story caught my attention. At the outset, it’s important for everyone to understand that Oak Park is not a homeowners’ association. I repeat Oak Park is not a homeowners’ association. And all I can say about that is what a relief! 

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Mark Payne as Spokesman for CAI Offers Balanced View of HOAs on CBS News 4

Last Friday, I blogged on a news story aired by Consumer Investigator Jodi Brooks on CBS News 4. I opined that Ms. Brooks didn’t bother to take the time to investigate the claims made by a small group of disgruntled homeowners and instead opted to present an unbalanced point of view that HOAs are bad and abusive to residents. However, I did concede that not all HOAs are perfect and sometimes homeowners are treated poorly.

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Will HOAs Ever Be Treated Fairly By the Press?

Last night during the 10:00 pm newscast, CBS 4 News Consumer Investigator Jodi Brooks reported on a meeting she held with a group of disgruntled residents who live in a handful of HOAs in Colorado. While there’s no question that residents are sometimes treated poorly by their HOAs, Ms. Brooks made no attempt to interview the associations that allegedly mistreated these individuals. Instead, she took the time-honored approach of many reporters by giving a one-sided account of their complaints.

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Myth of the Poop Fairy is Dead in Jeffco!

Phantom dog poop is not just a problem in HOAs! Colorado's Jefferson County Sheriff’s Office, in partnership with local park districts and HOAs, has launched the “There is No Poop Fairy” campaign to bring attention to the problem of dog waste. This campaign has already received national attention from Rachel Maddow and the Huffington Post

 

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Join Us for the CAI Rocky Mountain Chapter Legislative Update!

The Rocky Mountain Chapter of Community Associations Institute (“CAI”) is hosting The Calm Before the Storm on Wednesday, July 13, 2011. This legislative update class will be held from 11:30 am to 1:30 pm at Dave & Busters which is located at Colorado Boulevard & I-25. 

David Graf and I will be presenting the class which will focus on:

● HOA legislation that was signed into law in 2011;

● Bills of significance that didn’t make it through the legislative process;

● Hot issues you need to know about; and

● Bills we anticipate will be introduced during the 2012 legislative session – which promises to be the toughest session ever for HOAs in Colorado. 

 

You don’t have to be a CAI member to attend this class. Early bird registration is $35.00 for CAI Members/$45.00 for Non-Members. All registrations received after 4:00 pm on July 12th will be $45.00. Register now to take advantage of the early bird registration price! 

 

For more information about the class, contact the Rocky Mountain Chapter by calling 303-951-4973.  We look forward to seeing you on the 13th!

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Independent Contractors vs. Employees: What HOAs Need to Know

Associations often contract with individuals for bookkeeping, landscaping, or building maintenance services, among other things. The status of these service providers as either independent contractors or employees can have important tax and legal consequences for associations.

The IRS initiated a crackdown in 2010 concerning the classification of independent contractors and employees. The IRS will randomly audit 6,000 companies through 2013 and will generate about $7 billion for state and federal governments from employers that misclassified employees as independent contractors.

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What are Solar Gardens and What Can They Do for Me?

While owners of individual houses and townhomes in homeowners associations may install solar panels on their rooftops (subject to prior association approval), roofs of condominiums are a different story.

 

We often receive questions from condominium associations regarding owners’ rights to install solar panels on the roofs of the condominium buildings. Condominium roofs are common elements and, as such, individual owners do not have the right to place solar panels on them. Solar gardens offer condominium owners an option for receiving many of the same benefits of solar panels otherwise reserved for single family homeowners and townhome owners.

 

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HOAs Going the Way of the Dodo? Not Likely

Yesterday Mainstreet.com reported on a new book that Evan McKenzie has written about the future of HOAs in the United States. Professor McKenzie, a political science professor at the University of Illinois at Chicago, has been studying the political structures of HOAs for years and previously authored Privatopia: Homeowner Associations and the Rise of Residential Private Government

In his recently released follow-up entitled Beyond Privatopia: Rethinking Residential Private Government, Professor McKenzie “explores the latest issues and trends in common interest developments and opposing viewpoints as to how they should be managed.” Mainstreet.com reports that “McKenzie’s larger point is that once consumers gain some leverage against homeowner groups, these associations will begin to lose power, and eventually fade away.”

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HOA Information Office and Resource Center Publishes Consumer Brochures

The Colorado HOA Information Office and Resource Center ("Center"), housed within the Division of Real Estate, has published the following consumer brochures:

Before You Purchase in an HOA

Covenant & Rule Enforcement

HOA FAQs

Understanding HOA Meetings

One of the purposes of the Center is to provide information to consumers on the rights and responsibilities of homeowners and associations under the Colorado Common Interest Ownership Act

 

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Alligator Alert: Putting Pet Problems in Perspective

It's that time of year when homeowners' associations in Colorado see complaints about pets begin to escalate.  Whether it's barking dogs, stray cats, phantom poop or dogs playing in the common areas without a leash - these complaints are problematic but usually not life-threatening. 

To put our challenges with pets into perspective, check out this notice posted in a Florida HOA: 

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CPSC Announces Recall of Pool and In-Ground Spa Drain Covers

Just as homeowners’ associations are opening their pools for the summer season, the U.S. Consumer Product Safety Commission (“CPSC”) announced a recall of pool and spa drain covers produced by eight manufacturers. According to the CPSC, the “recalled drain covers were incorrectly rated to handle the flow of water through the cover, which could pose a possible entrapment hazard to swimmers or bathers.” 

The recall involves various pool and spa drain covers that can be identified by the manufacturers’ name and model information listed below: 

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Sometimes Covenant Enforcement is a No-Win Situation

Homeowners associations are often faced with the challenge of enforcing covenants when that enforcement is not politically popular.  Recently, an association in Louisiana directed a couple to remove a large, bright banner from their front yard.  The association’s covenants only permit the display of real estate signs.

 

Unfortunately for the association, the banner expresses support for the couple’s son, who is a Marine in Afghanistan.

 

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Community Association Unity in the Wake of September 11th

Last night as I watched President Obama announce that U.S. Special Forces had taken out Osama Bin Laden, I felt transported back to September 11, 2001. At the time, I was the Vice President of Government & Public Affairs for the National Community Associations Institute (“CAI National"). Our offices were located in Alexandria, Virginia which is a suburb of Washington, DC and a stones throw away from Reagan National Airport and the Pentagon. 

Barbara Byrd Keenan, then CEO of CAI National, was convening our weekly Executive Team meeting when we heard about the first plane hitting the World Trade Center. We thought it was odd and assumed a propeller plane had hit one of the towers. Minutes later, we received word that planes had hit the World Trade Center and Pentagon. Several of us ran up to the patio located on the roof of our high rise building and could see black smoke billowing out of the Pentagon. There was no doubt about it – the United States was under attack.   

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Condo Sales Looking Up in Summit County

On Saturday, SummitDaily.com reported the following good news on condominium sales: “Condominium sales in Summit County are up 17 percent over last year to date with monthly totals higher for four of the last six months. The average sale price is nearly even with last year to date and should have no problem equaling last year by December as our market continues to stabilize.” 

This is great news for the condominium associations in Summit County, since new sales tend to positively affect the ability of associations to collect assessments. We are hopeful this trend will continue and spread to other counties in Colorado. 

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Grab Your Top Hat or Tiara and Join Us at CAI's Spring Showcase!

Next Friday is going to be a banner day. It’s the day of the long-awaited Royal Wedding and the Community Associations Institute (“CAI”) Spring Showcase! While it’s certainly a day to celebrate, it’s also an outstanding opportunity for folks in the HOA industry to come together, to share and learn from one another. 

Did you know that a recent national survey conducted by the CAI found that the majority of the nation’s estimated 310,000 HOAs are undergoing financial strain? In the survey of more than 1,500 community managers, 54% said their associations face “serious” or “severe” problems as a result of the economic downturn.

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Down to Seeds and Stems (Again)?

I grew up in Boulder, but as I decided to attend college in Oklahoma, and have no chronic pain issues, I never participated in the annual “4/20 Day” festivities that occur on the CU campus. For those not familiar with the tradition, April 20 is the day when individuals either protest the illegality of marijuana by smoking in public, or smoke in public to, well, smoke in public.

When Colorado voters approved medical marijuana over ten years ago, the effects were not immediately felt. Everyone recognized that marijuana was still illegal at the federal level, even for pain management, but no one was quite sure how to handle distribution and enforcement at the local level.

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Homeowners Associations: Keeping Property Values Out of the Toilet

9News recently published a story about a man in the Denver Highlands who is protesting the construction of a nearby duplex by putting multiple toilets and other items in his front lawn. According to the contractor constructing the duplex, the homeowner has resisted its construction from the beginning, and is now trying to discourage its sale.

The toilets and debris do not violate city ordinances or codes, and as the neighborhood was developed before common interest communities became commonplace, there is apparently no homeowners association to dictate lawn décor.

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Scam Targets Associations and Nonprofits

I just got off the phone with the manager of one of my more “entertaining” associations. After discussing an upcoming meeting, I asked her if the association was registered with the HOA Information Office. For more information on this registration, click here. She said they were properly registered, but she had received a surprising bill from the Secretary of State for $225.00. Stunned at the increased fee – periodic reports usually cost $10.00 annually – she had nevertheless placed the bill in the “to be paid” pile.

The surprise here is that the bill isn’t from the Secretary of State. It is actually a ploy to get corporations and small businesses to pay an increased periodic report fee to the company sending the letter – Corporate Controllers Unit. After the duped corporation pays the increased fee, presumably Corporate Controllers Unit will use the money to ensure the corporation files its periodic report with the Secretary of State. 

9News did a story on this activity this morning, and it appears this letter is widespread. If you receive an unusual letter or something seems a little off, trust your instincts and do your research! You can save your association hundreds of dollars. If you have received a letter from Corporate Controllers Unit, the Attorney General encourages you to file a report.

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When Life Gives You Lemons...Talk to Your HOA Before Making a Lemonade Stand

A Florida homeowners association recently took action to shut down a lemonade stand run by children ages five through ten. I remember the misspent days of my youth, sitting on the corner on a sunny summer weekday, wondering why no one in my rural neighborhood stopped by to sample my watered-down Countrytime…

Of course, I had five neighbors within a mile, and they all worked on Tuesdays. It appears the children in Florida have a better business plan – they are selling lemonade in an actual neighborhood. Their association, however, has taken the perspective that such sales are an impermissible commercial activity, prohibited by the association’s governing documents.

Continue Reading Posted In Community Association News , Covenant Enforcement
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Hats Off To the Golden Triangle Association!

Founded in 1993, the Golden Triangle Association (“GTA”) in Denver is all about neighborhood activism and building community. Members of the GTA include individuals, households, HOAs, businesses and organizations committed to promoting shared values in the Golden Triangle. 

Among many other things, the GTA is involved in community activism on issues relating to zoning and signage codes, traffic and safety issues, liquor licensure and compliance and other challenges facing their collective community. The GTA has also committed to staying informed on legislative issues affecting the HOAs located in the Golden Triangle. 

 

Winzenburg, Leff, Purvis & Payne (“WLPP”) was honored to meet with members of the GTA last evening to provide them with a mid-session update on what’s happening in the Colorado General Assembly. We would like to thank the GTA for inviting us to play a small part in their overall mission by keeping them informed. 

 

To learn more about or join the GTA, check out their website.

 

If you are involved in an HOA or neighborhood association that is making a difference, WLPP would love to share your story. Please email Molly Foley-Healy with information at: mfoley-healy@wlpplaw.com

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Federal Probe Into HOA Fraud Scheme in Nevada - Who would have thunk it?!

For a moment I thought I was reading an excerpt from a Sidney Sheldon thriller – instead of an article in the Las Vegas Review Journal (“Journal”) reporting on an alleged fraud scheme centered on HOAs. 

The Journal was reporting on a federal investigation relating to an alleged “scheme to rig homeowner association board elections to position conspirators, including former police officers, who would push the boards to file construction defect lawsuits against builders. Legal work and multimillion-dollar repair contracts then would be funneled to associated lawyers and companies.”

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Come Join Us for HOA Law Basics on March 3, 2011!

HOA Law Basics

Build Your Community Association Governance Toolkit

Live Program and Live Webcast: Thursday March 3, 2011

Live program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver, CO

 

Video Replays: March 24, 2011

Denver, Colorado Springs, and Grand Junction

 

This foundational program will give you the basics of representing community associations and homeowners, including these presentations by Colorado lawyers who have focused their practices on community association issues:

 

  • Overview of Common Interest Communities: Background, Relevant Statutes, Documents and Governance
  • Collection Actions
  • Reserve Funding and Reserve Study Investments
  • Transparency and Governance
  • Covenant Enforcement
  • Conflicts of Interest

For course details or to register online, go to: http://www.cobar.org/cle/photos/ProgramPages/HOALawBasics2011.htm

 

 

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HOAs Going to the Dogs

Members of the Hillbrook-Tall Oaks Civic Association in Annandale, Virginia, recently elected a dog as President of their association. When asked to vote for the office, residents unanimously elected Ms. Beatha Lee on her strong platform emphasizing her outdoor interests and neighborhood activities.

For the full article, see:

http://www.washingtonpost.com/wp-dyn/content/article/2011/02/18/AR2011021807506.html

While the idea of residents unwittingly electing a dog to oversee their association is funny, it highlights the reality that many associations simply cannot find qualified volunteers to sit on their boards. Board service can be a difficult and thankless job, and we are grateful for the owners and residents willing to take it on. It’s up to you to keep your neighborhood from going to the dogs.

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Commonly Asked Questions and Answers

Commonly Asked Questions and Answers:

Below you will find a list of some commonly asked questions and answers regarding an Association's rights in the collection of unpaid assessments.  Please clink the link below each question to continue reading the previously posted article that discusses each answer in depth.

 What are some of the options an Association has to enforce its covenants to collect unpaid assessments?

When considering the various options available to an Association, the first thing a Board should do is consult their governing documents. Typically the Association’s Declaration will specifically state

Continue Reading Posted In Community Association News , Money Matters
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Greening Your Community Association

"Going green" seems all the rage these days. From the cover of Newsweek, to hybrid vehicles, to Al Gore and the bevy of eco-friendly products at the local retail store, the push for consumer products and practices that minimize the impact on Earth and its resources has found its place in mainstream America.

Community associations, too, play a role in the green movement. New or old, common interest communities impact the Earth at both the association level and the individual homeowner level. Individuals and associations alike can implement many practices aimed at reducing energy consumption and the overall carbon footprint of their daily activities.

For the past three decades Colorado statutes concerning solar energy devices have guided community associations’ architectural policies. More recent legislation establishes mandates regarding community associations’ landscaping policies and seeks to allow homeowners to use more energy saving devices such as wind generators, retractable window awnings, and clotheslines.

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Colorado Foreclosure Law and Your Association's Superlien

As part of the changes to Colorado’s foreclosure law that become effective January 1, 2008, C.R.S. §38-38-103(1)(c) will read:

If a recorded instrument does not specify the address of the party purporting to have an interest in the property under such recorded instrument, the party shall not be entitled to notice and any interest in the property under such instrument shall be extinguished upon the execution and delivery of a deed pursuant to section 38-38-501.

Meaning, if your association’s current contact information is not listed in your Declaration, a lender foreclosure could extinguish your association’s super priority lien.

Continue Reading Posted In Community Association News , From Capitol Hill/Legislation , Governance , Your Governing Documents
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Can You Fly Your Flag Upside Down?

For better or worse, community associations are in the news once again.   As you may have heard, a homeowner in Wheat Ridge, Colorado has been flying her U.S. flag upside down to protest the country's role in the war in Iraq. Recently the Association in which the owner lives has demanded that she fly the flag properly or not at all. The Association contends that her flying of the flag “union down” violates Association's patriotic and political expression policy. The owner has responded that this policy violates her 1st Amendment right of free speech. Below are a few questions that we have received in response to this controversy: 

  1. Can an association adopt rules and regulations pertaining to the display of the American flag?

Answer: Yes. In Colorado a community association may adopt reasonable rules regarding the placement and manner of display of the American flag. However, Colorado law states that an association may not prohibit the display of the American flag as long as it is displayed in a manner consistent with the federal flag code.

  1. Does the federal flag code allow flying of the flag “union down”?

Answer: Yes, in limited circumstances. The “U.S. Flag Code” states that the flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property (for those interested in researching this, see 4 U.S.C. § 8). The homeowner described above states that she is flying the flag upside down because the war in Iraq has put the country in a very distressful situation. It is unclear as to whether this novel argument would succeed in Court.   

  1. Is a restriction on the display of the American flag a violation of the 1st Amendment or state constitutional rights of free speech?

Answer: The answer to this question is currently unclear. It has been generally held that the 1st Amendment does not apply to speech and assembly on private property or within a private organization. In other words, a private community generally has the right, through its covenants, to restrict the speech within its borders. This is basically a contract that an owner agrees to when it purchases property in a covenant controlled community. However, a recent case in New Jersey has questioned this notion, holding that the proliferation of common interest communities have made them “constitutional actors” that must respect their members’ fundamental constitutional rights. This case is currently under review by New Jersey Supreme Court. The Colorado Supreme Court has not yet addressed this issue.

           

Posted In Community Association News , Covenant Enforcement , Governance
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Community Association Summer Events: Licensing Your Music and Movie Use

The first day of Spring and the recent sunshine and warm temperatures may have prompted you to start thinking about your Association’s Summer event calendar. If your Association’s list of events includes outdoor movie nights, concerts, or other performances, the Association may need to pay licensing fees. United States copyright laws protect composers, lyricists, music publishers, and movie producers and distributors, among others. Community associations that play music in recreational facilities, at festivals or at other events likely need to obtain the appropriate licenses to use the music. With few exceptions, showing movies also requires licensing. 

Continue Reading Posted In Community Association News , Legal Info , Off the Top
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Community Associations in the News

Colorado community associations are making headlines.  A few weeks ago, a Pagosa Springs peace wreath made national news.  Our own Mark Payne weighed in on the topic on Denver's Channel 7.  You can watch the newscast here.  The homeowner association later allowed the homeowner to keep the wreath on display for the holidays. 

Just this week, the family of an autistic child filed a lawsuit in federal district court against their homeowners association in Littleton, Colorado.  According to news reports, the homeowners seek approval of a six-foot privacy fence that they installed to help protect their eight-year-old son.  The lawsuit's claims fall under the Fair Housing Act.

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Jefferson County District Court Rules HOA Can Ban Smoking In Units

The Jefferson County District Court ruled last week that a condominium association can prohibit smoking in their four-unit building.   The Heritage Hills #1 Condominium Owners Association amended its bylaws to ban smoking after an owner complained about smoke seeping into her unit.  The District Court upheld the bylaw change stating that second hand smoke "constitutes a nuisance" similar to "extremely loud noise."  Click here to read an article on this ruling recently published in the Denver Post. 

 

Posted In Community Association News , Covenant Enforcement , Governance , What the Courts Say
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Today is "National Night Out" for Communities

National Night Out was created by the National Association of Town Watch to bring individuals and communities into the fold when it comes to taking a stand against local crime. The program began in 1984 and last year had over 34 million people participate. Communities and individuals make a show of community by doing anything from congregating on front porches to organizing a block party.

What does your community association intend to do for National Night Out?  Let us know by posting a comment. 

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