I Can't See the Forest for the Yard Signs

We are fifteen days from the 2014 midterm elections, and candidates are undoubtedly working hard to get those elusive swing voters to the polls. Yard signs are one tool that candidates use to build name recognition and sway votes. A multitude of signs for federal and state political offices, as well as several ballot initiatives, are jostling for real estate this year. In years past, community associations could rely on restrictive covenants to prohibit political signs from disrupting the neighborhood aesthetic. But, since 2005, Colorado law has outlawed any outright prohibition of political signs in covenant-controlled communities. Colorado statutes provide guidance on what political signs associations can regulate, where signs can be placed, and when political sign regulations can apply.

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I object (to your shed), your Honor!

A judge in Michigan recently sued her homeowner’s association seeking a declaratory judgment (a judgment from a court that determines the rights of parties without ordering anything be done or awarding damages) that the more than six foot tall shed she installed in her yard does not violate the association’s covenants.   The homeowner’s association claims the shed violates a deed restriction in the covenants and the association has threatened to sue the judge if she doesn’t remove or downsize it.   

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Broncos Nation is not an actual nation

Football season starts this Friday with College kicking-off (Rams @ Buffs, Friday, August 29, 7:00 PM on FS1, Air Force Falcons vs. Nicholls Colonels Saturday, August 30, 12:00 PM on ESP3), and the AFC Champions, the Denver Broncos, start the regular season the following weekend (vs. Cowboys, Sunday, September 7, 6:30 PM).  
 

A few last pre-season reminders:

  • Orange and Blue may be the greatest combination of colors, but check with your Association before repainting your home.
  • Broncos Mini Yard Flags must not be placed on the common elements without the permission of the Association.
  • The Officially Licensed Broncos Nation Flag is not actually an American national flag, and thus not a protected patriotic expression under Colorado Law.
  • Same goes with the camouflaged Broncos Flag.
  • Before buying your very own Broncos Bus, check whether it is a prohibited vehicle under the declaration.
  • Enforcement of covenant violations for displays of team colors must be impartial and uniform. That is unless your community’s declaration defines the Seattle Seahawks as a nuisance. 
     

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A Nuisance or Not?

 All of us have complained about a loud and noisy neighbor or some other disturbance that we have deemed a nuisance at one point or other in our lives. However, we should all be thankful that none of us reside in the Plaza at Five Points Condominium Association in Sarasota, Florida. Apparently, the condominium association sits atop of a nightclub. As a single man I appreciate a good nightclub and having one downstairs from where I live sounds interesting. However, this is not just any nightclub but rather one which allegedly stages “drag queen pillow fighting and gelatin wrestling”. Some of the older residents did not appreciate the noise and activities downstairs from them and filed complaints with the city and police and, according to the club’s attorney, pressured the owner of the building to break the club’s lease. The efforts by the association apparently have failed and now the club’s owner has filed a lawsuit against the association claiming that it went too far.  www.heraldtribune.com/article/20140515/ARTICLE/140519808

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Spring and Summer Tips for HOA Living

Okay – so the nicest thing I can say about the snow we had on Mother’s Day is that it was really annoying. However, regardless of our quirky Colorado weather, spring really is here! That means HOA boards and residents need to anticipate and avoid common pitfalls and controversies that can arise as we spend time outdoors during the spring and summer. Here are some important tips to keep in mind:

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Jurassic Covenant Violations

I do not have a green thumb. Our new attorney, Doug, is an excellent gardener, so I am trying to figure out ways to convince him that beautifying my lawn is a requirement of his employment. I think he's starting to figure me out.

I'm not the only one who wants a nicer lawn. Now that it's Spring, many homeowners throughout Colorado are breaking out their shovels and trowels, turning their soil, and installing velociraptor lawn ornaments.

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Dreaming of My Younger Years and a Retro Landscape

Spring is in the air and I think it’s time to rethink the look of our home exterior and landscaping for the summer. Lately, I’ve been looking back a bit on my younger years when life was full of adventure and wonder. There’s no better way to recreate that feeling than to go with a retro theme for our house and yard. I’m inspired now and here’s what I’m thinking:

● Paint the house a lovely shade of pea green;

● Use recycled bowling balls as edging for the flower gardens;

● Hit yard sales this weekend and hunt down 6 or so of those “house butterflies” that were so popular in years past (make sure to spray paint them burnt orange, lime and gold before attaching them to the house in strategic locations to give our neighbors maximum enjoyment);

● Find a cute fountain that mimics a little boy peeing in the grass (that would be perfect for the front yard near the culdesac);

● Bury 1/3rd of an old claw foot bathtub in the ground and place a statue of the Virgin Mary in it (some might think that’s sacrilegious – so probably not a good option);

● Find weathered statues of Snow White and the Seven Dwarfs and place along the edge of the yard near the culdesac for the neighborhood children to enjoy;

● Last, but not least, make sure to find a statue of Bambie to place by the tree in the front yard right next to the mooning garden gnome. 

 

"You know your neighbors will love me."

 

 

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Marijuana Matters: Has your association taken a shot at regulating pot?

As you’re probably aware, effective January 1, 2014, recreational pot became legal in Colorado. This new law is already affecting homeowners associations. While some associations started planning for pot smoking residents last year when the law was passed, not every community association moved quickly to adopt rules and regulations or amend restrictive covenants to address anticipated issues related to recreational pot smoking. If your association has not yet considered whether the new marijuana laws will affect your community, or if you’re thinking about how to tackle problems before they occur, here are some things to consider:

Shared spaces. Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Associations should also evaluate the extent to which local laws interact with association rules and regulations and seek to fill any regulatory gaps that warrant attention in specific communities. Boards will want to pay particular attention to areas of their communities where use of marijuana will impact other residents. For example, with tobacco smoke, smoking near doorways and windows of other units are areas that typically result in complaints from residents.

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Chalk Another One Up to Bad Communication

I recently read an article about a homeowner in Texas who received a violation notice from her homeowners association as a result of chalk drawings left on her driveway by her son – something the owner and neighbors do not feel the Association’s governing rules specifically address.  The article goes on to state that the owner and her neighbors organized an event where they handed out bundles of chalk to kids from the neighborhood who gathered to decorate their sidewalks and driveways. While this may be a knee-jerk reaction for most folks, intentionally violating the rules in an attempt to  “send their neighborhood association a message” may only worsen the situation by subjecting more owners to similar violation notices and potential fines.  Though the Association may not have a rule specifically addressing chalk use, most Association’s have rules and regulations that deal with the maintenance and upkeep of a property and require owners to keep their property in a clean, safe, and attractive manner – something “chalk drawing” could surely fall under. 

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When Your Community Doesn't Own Anything, Is It Subject to CCIOA?

 Readers of this blog know that CCIOA came into effect on July 1, 1992, but by its definitions, only applied to certain common interest communities, and further, only in limited respects to those communities formed before July 1, 1992. Many legal practitioners held the opinion for many years that CCIOA did not apply to homeowners associations that did not actually own any real property that they were responsible for maintaining, improving, insuring, or paying taxes for.

However, that opinion changed in 2009, when the Colorado Court of appeals issued a ruling that essentially said that CCIOA does not require ownership of real property by the homeowners association. Rather, by the terms of CCIOA, if the owners in the homeowners association were bound to pay assessments, and the assessments were used in part to pay for enforcement of the restrictive covenants or provide services to the members, that was sufficient to make the community subject to CCIOA.

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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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Due Diligence and Living Happily Ever After

We hear the term “Due Diligence” used in many different contexts, but what does it mean? According to Merriam Webster, it is the care that a reasonable person exercises to avoid harm to other persons or their property. A common transaction where this term is used is in the purchasing of a home. While many of us think of due diligence as obtaining inspections, appraisals and checking out the neighborhood and schools, one should also research if the property is located within a covenant controlled community.

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Pssst...My Neighbor is Violating the Covenants!

All Colorado community associations are required by the Colorado Common Interest Ownership Act ("CCIOA") to adopt responsible governance policies governing issues like collections, meeting procedure, and records inspection.  CCIOA does not provide a lot of guidance for the terms of these policies, but the policy regarding enforcement of covenants and rules and the imposition of fines, must provide the following:

  • Notice and hearing procedures;
  • A schedule of fines;
  • A fair and impartial fact-finding process; and
  • An impartial decisionmaker.

These minimal guidelines do not address a question we frequently see from our clients: "Do I have to tell my neighbor I ratted him out?"

Many homeowners prefer the option of anonymity when making a covenant violation complaint.  The reasons for the preference are obvious - it allows the complainant some measure of protection from an irate neighbor, and can encourage free and open violation reports.

Photo courtesy of http://theduty.tumblr.com.

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The Creeping Landscape - Or What's Mine is Mine, and What's Yours is Mine Too

We get questions from time to time from associations inquiring about homeowners who have installed improvements around their home, sometimes with association approval, but oftentimes, without. Upon further examination, the association discovers that the improvements appear to encroach on the association’s property - open space, parks, etc.

The inevitable question from the association is “what can we do about it?” “Can we just remove it at the owner’s expense?” “Do we have to leave it?” “It looks okay, and we don’t mind it being there, but who is required to maintain it?” “What do we do now?”

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It's Springtime! Let's Paint the House Pink!

Ahhh, spring, when a young lawyer's fancy turns to thoughts of...covenant enforcement.

I love covenant enforcement cases. In most situations, the owner who violated the documents has no defense and it's up to the association to make sure the owner complies with the documents that govern his property.  Sometimes it can be a headache, but it's the Association's legal duty to enforce these documents.

Not in your backyard? Enforce your covenants!

Some thoughts from your lawyer's perspective to help ensure a successful covenant enforcement action:

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2012 HOA To Do List Reminder: Review and Refine Rules

Over the past few weeks, I have been posting a series of blog entries outlining items that boards and managers of homeowners’ associations (“HOAs”) should add to their 2012 To Do List. One item that can be easily overlooked is the review and refinement of rules and regulations (“rules”). 

Since boards have the fiduciary duty to enforce rules, it’s essential for boards to undertake a periodic review of their association’s rules. While it’s wise to work with legal counsel when reviewing and revising rules, here are a few areas of inquiry:

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Holiday Decorations: My Favorite Spectator Sport

The holiday season is fast approaching which means I’m gearing up to enjoy my favorite spectator sport of the year. No – I’m not talking about watching football. I’m talking about watching the men in my HOA compete with each other over installing the “best” holiday display. From my point of view, what the “best” display consists of is certainly open to debate. However, I’m convinced the guys think “more is best.” 

Once the initial installation of their displays is complete, you will see some of the guys talking with each other comparing their artistic expressions. Appropriate adjustments are then made. However, some of them are a bit more subtle. You will see vehicles slowly moving past displays as they desperately try to count strings of lights and assorted decorations without being obvious. The next thing you know, someone will be teetering on a ladder in howling winds installing yet another string of lights. During this time, I make sure to let my husband know that he is being shown up by his neighbors. I then quietly wait to see what will happen next.

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I LOVE Color - But My HOA Doesn't . . .

EcoSalon republished a great story written by Lindsey Anna Toleda entitled Seeing Red (When the Homeowners Association Wants To See White). It’s a well written piece about the importance that heritage, images from their travels and color plays in lives of Lindsey Toleda and her husband.

Lindsey and her spouse live in a homeowners’ association (“HOA”) and really wanted a red front door. She wrote:

 

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Another Victory for Receiverships

A receivership can be a useful tool for associations to collect delinquent assessments and fees against homeowners whose property is tenant-occupied or vacant. Assuming there are paying tenants, the process is typically smooth and the association recovers its delinquents assessments together with the costs of the receivership. In some cases, however, the tenants refuse to pay their rent or pay reduced rent to their landlords if they are Section 8 qualified. The former situation allows the receiver to evict them for non-payment, but the later presents a problem.

An article in the SunSentinel reported that the Willoughby Estates Homeowners Association in Lake Worth, Florida was presented with such a dilemna when it filed a receivership lawsuit and was faced with collecting rental income from a Section 8 tenant. The tenant was only paying $275.00 of the $1,784.00 in rent owed each month with the remainder subsidized by the county Housing Authority. Not a bad deal if you ask me! The association, however, had other plans and demanded that the Housing Authority forward the rent that it sent to the landlord each month. Interestingly, the Court agreed and required the Housing Authority to forward all future payments to the association until it was paid in full.

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Installation of Solar Panels by Homeowners on Roofs of Condominiums

As I was perusing HOA headlines, I noticed an editorial written by the Desert Sun Editorial Board entitled Thumbs Down: Homeowners associations should allow solar panels on condominiums. The editorial slapped the Palm Valley Homeowners Association for not permitting a couple to install solar panels on the roof of their condominium. The roof is a common element and the Association is concerned about damage. While the couple has said they would accept full legal responsibility for damage, the Association doesn’t seem inclined to budge on the issue.

On July 28th, I blogged on a Breckenridge condominium association that had installed a solar thermal supplemental hot water system on the rooftop of the condo building. What is important here is the association installed the system on the roof it is responsible for maintaining. In the Desert Sun story, the homeowners are requesting to install panels on a roof which the association is responsible for maintaining, repairing and replacing

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Before Buying In An HOA: Educate Yourself and Ask Questions

For anyone who has gone through the process of searching for a new home, you have probably experienced the exhilaration of finally finding the perfect home! If your perfect home is located in a homeowners’ association (“HOA”), do your homework, ask some important questions and be honest with yourself before signing on the dotted line. Here are some suggestions: 

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Woman with Thousands of Rats Highlights Problems Associated with Hoarding

From time to time, homeowners’ associations (“HOAs”) are faced with the problem of addressing a resident who hoards. The Mayo Clinic defines hoarding as: 

“. . . the excessive collection of items, along with the inability to discard them. Hoarding often creates such cramped living conditions that homes may be filled to capacity, with only narrow pathways winding through stacks of clutter. Some people also collect animals, keeping dozens or hundreds of pets often in unsanitary conditions.

 

Hoarding, also called compulsive hoarding and compulsive hoarding syndrome, may be a symptom of obsessive-compulsive disorder (OCD). But many people who hoard don’t have other OCD-related symptoms.

 

People who hoard often don’t see it as a problem, making treatment challenging. But intensive treatment can help people who hoard understand their compulsions and live safer, more enjoyable lives.”

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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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Use Restrictions and Rules Should Fit the Community

If you follow news stories on homeowners’ associations (“HOAs”), you may have seen coverage on the uproar created by the Sutton Lakes Homeowners Association in Jacksonville, Florida that has asked a resident to remove a sign that simply says Jesus. Evidently, the governing documents of the HOA only permit “For Sale” and “For Rent” signs in the community.

While Colorado law prohibits HOAs from banning the display of political signs, other types of signs can be prohibited through use restrictions found in a declaration of covenants, conditions and restrictions or through rules and regulations. The question is not whether an association has the authority to restrict signage; the question is whether these types of restrictions make sense for your community.

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Dim-Witted HOA Finally Sees the Light

A Florida homeowners association recently decided to waive $20,000 in fines accumulated by a homeowner who abandoned her property to her lender.  It appears that owner Linda Conti overestimated her ability to purchase the home, and planned to turn the property over to the bank with a deed in lieu of foreclosure.  She moved out before the bank took title, and as a result the property's front lamp was left unlit for over a year.  This violated the association's covenants, and the association levied a $50.00 fine every day, resulting in $20,000 in fines and several thousand dollars in attorneys' fees.


 

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Even NASCAR Drivers Don't Get to Cut Corners for HOA Approval

I don't watch NASCAR, in spite of my vaguely southern roots.  I prefer sports with more action and bloodshed - like homeowners association meetings.  Todd Bodine is a NASCAR driver, an HOA member, and apparently a fan of tiki huts and pool houses.  Bodine constructed a tiki hut and pool house on his property, and after four years of dispute and litigation, the North Carolina Supreme Court sided with his Association.  The Association claimed the hut and house were not approved, and had to be removed.

 

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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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Do Your Governing Documents Address Pot-Bellied Pigs?

WBTV News in Charlotte, North Carolina reported yesterday on an ugly dispute in a homeowners’ association (“HOA”) over removing a pot-bellied pig from the community. The feud escalated to a point where the owner of the pig posted an entry on her Facebook page with a picture of her pig and “an image of a gun with a backward facing barrel with words “Made especially for HOA Board Members,” according to a report last week from deputies.” 

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Before Imposing Fines - Make Sure Your Ducks Are in a Row

Summertime and the living is easy . . . unless you are a community association manager or board member in a homeowners’ association (“HOA”) dealing with violations of covenants, rules and regulations or architectural guidelines. It can be extremely frustrating to receive constant complaints on alleged violations, to send out letters to owners informing them of a violation and requesting their compliance – only to be repeatedly ignored. Sometimes the only option left is to “motivate” these individuals to come into compliance by the imposition of a fine. But before a fine is imposed, make sure that your HOA is compliant with Colorado law. 

The Colorado Common Interest Ownership Act (“CCIOA”), at C.R.S. 38-33.3-209.5(2), addresses the parameters that HOAs must comply with prior to imposing a fine. Here’s what you need to know:

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Condo Association Makes Delivery of Oxygen Tank Difficult for Elderly Resident

11News recently reported on a condominium association in Grand Junction that has evidently made it difficult for a 96 year old resident to receive delivery of oxygen tanks which are critical to her health and well-being. 

Ms. Metcalfe claims that the homeowners’ association (“HOA”) is no longer permitting her oxygen tanks to be delivered through the front entrance of the association. As a result, she is forced to travel down 3 flights of stairs to receive her delivery from the garage entrance. Ms. Metcalfe claims that she has already taken a serious fall trying to get down to the garage. She told 11News that “I did fall, and I injured my head, my hip, my knee.” She was subsequently hospitalized for treatment of her injuries.

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Awnings and Shutters and Clotheslines - Oh My!

With the sun finally heating up Colorado, so are the architectural requests by residents in homeowners’ associations (“HOAs”). Like solar panels and windmills, Colorado law regulates unreasonable restrictions by HOAs on “energy efficiency measures.”

The Colorado Common Interest Ownership Act (“CCIOA”), at C.R.S. 38-33.3-106.7, defines an energy efficiency measure as “a device or structure that reduces the amount of energy derived by fossil fuels that is consumed by a residence or business located on real property.” CCIOA specifically limits “energy efficiency measures” to include only the following items and devices:

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Displaying the American and Service Flags: What HOAs Need to Know

With the Memorial Day weekend upon us, residents in homeowners’ associations (“HOAs”) across the United States fly the American flag and service flags to honor our fallen heroes. As a result, it’s the perfect time to review provisions of Colorado law addressing HOAs regulating the display of these flags in associations. 

Here’s what HOAs need to know:

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Windmills: What HOAs Need to Know

Last Friday, I celebrated the sun coming out by blogging on solar panels in homeowners’ associations (“HOAs”). In that entry, I mentioned that solar panels are regulated as “renewable energy generation devices” under Colorado law and cannot be prohibited from being installed in HOAs. However, associations do have some broad authority to regulate the aesthetics and placement of the panels.

Like solar panels, windmills (referred to as “wind-electric generators” under the statute) are also classified as a “renewable energy generation device” and have similar protections under C.R.S. 38-30-168.

 

Here’s what HOAs in Colorado need to know about regulating the installation of windmills:

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Solar Panels: What HOAs Need to Know

I can’t believe it . . . the sun is actually peeking out from behind the clouds that seem to have taken up residence over Colorado! Hmmm . . . is it time to start thinking about installing solar panels on the roof of my house? Do you think the HOA will notice if I install them without receiving architectural approval? Will the HOA try to stop me from doing my part to help save the environment?

Colorado law (C.R.S. 38-30-168) addresses the authority of HOAs to regulate the installation and use of “solar energy devices” which are defined as “. . . a solar collector or other device or a structural design feature of a structure which provides for the collection of sunlight and which comprises part of a system for the conversion of the sun’s radiant energy into thermal, chemical, mechanical or electrical energy.” Solar panels clearly fall within this definition. 

 

Here’s what HOAs need to know about regulating the installation of solar panels:

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CCRD Focuses on Discriminatory Towing Practices

The Colorado Civil Rights Division (“CCRD”) of the Department of Regulatory Affairs yesterday disseminated a news release describing a year long investigation into the towing practices of  Kimberly Hills which is located in Federal Heights. While Kimberly Hills is not a homeowners’ association (“HOA”), the same principles apply and the story is instructive for HOAs.

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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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Play In the Streets and Not On the Grass!

Imagine this, you are watching your five-year old son playing in the grass located directly in front of your townhouse when security for your HOA informs you that your son can play in the street or back alley – but not on the grass. You then receive a violation letter informing you that children are not permitted to play in the common areas. As KVVU Las Vegas reported, that’s exactly what happened to Ramona Sjogren. 

Okay – is this story a joke? Did this HOA really have an employee tell a resident to have her five-year old play in the streets and alleys instead of the common areas? Has this HOA considered the potential liability associated with kids in the community getting hit by a car backing out of a garage or driving down a street? What kind of insurance coverage is the association carrying? Do you think this HOA has ever heard of the Federal Fair Housing Act?

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Hoarding May Cause Owner to Lose Unit

The Tennessee Court of Appeals in the case of 4215 Harding Road Homeowners Association v. Harris, 2011 WL 145915 (Tenn.Ct.App.2011) recently ruled that a homeowners association had the right to permanently force a resident out of her condominium unit as a result of hoarding activity leading to unsanitary conditions within the unit and a resulting offensive odor in the common areas.

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Are Your Landscape Guidelines X-Rated?

As the saying goes, spring showers bring May flowers. In Colorado, we could add another line to that verse: Dry summer conditions bring water restrictions. Okay, I’m not a poet. I also don’t have a green thumb, which is one reason I’m a fan of X-rated landscaping. And, no, I’m not talking about risqué roses. This “X” rating refers to a plant’s ability to tolerate xeric, or dry habitat, conditions.
 
Colorado homeowners who want their flowers and other landscaping to survive the high desert and alpine summers—without breaking the bank on water costs—may consider Xeriscape options as part of their overall landscape plans. Colorado law ensures that homeowners who live in community associations can use drought-tolerant plants, including buffalo and blue grama grasses, in their landscaping. This does not mean that owners in HOAs can turn their yards into rock gardens. Xeriscaping is not "zero-scaping." It does mean that Colorado community associations cannot require owners to install landscaping that consists primarily of turf grass on their lots.

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Who Let the Dogs Out?

I love Maggie – our beautiful black lab. She is the sweetest most lovable dog you will ever meet. She is mellow and well behaved . . . that is until she steps outside into the backyard. Maggie immediately becomes a one-dog Neighborhood Watch and a BAD BARKING CITIZEN! 

While I’m extremely annoyed by Maggie’s barking, I can only imagine how my neighbors feel about it. It’s up to me as a homeowner living in an HOA to get the problem under control. After all, it’s natural for dogs to bark. In fact, I have it on good authority that barking is in their job description. 

 

If you live in an HOA and are putting up with a bad barking citizen, here are some tips to deal with the problem:

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Get Out of the Garage - NOW!

The San Diego Union-Tribune recently reported on a 70 year old woman who likes to spend time in her garage knitting, watching a little Jeopardy on TV and visiting with neighbors. Marilyn Weber, a resident of Villa Portofino Association (“HOA”), hangs out in her garage around 4 to 5 hours a day. “I don’t know what I would do if I couldn’t hang out in my garage, I think I’d go crazy,” she said. “All my friends come over to this space. It if wasn’t for them I would feel isolated.”

Mrs. Weber’s HOA doesn’t feel the same way. In fact, the HOA has fined Mrs. Weber $120.00 so far for using her garage as a living space. Evidently, the HOA’s governing documents say: “No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot as a residence, either temporary or permanently.”

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Put Away Your Bikes Kids and Get in the House!

I have a confession to make – I’m addicted to the news. It’s pretty common for me to have the remote control for the TV in hand as I rapidly surf from news program to news program. I was in the zone Saturday morning with a cup of coffee in one hand and my trusted clicker in the other when I couldn’t get away from news accounts of an association in Florida that is proposing a ban on kids playing outside. With a nuclear plant on the verge of a meltdown in Japan, a civil war raging in Libya and Charlie Sheen kicking off his “Torpedo of Truth Tour,” why on earth was there so much press coverage about this HOA?

The fact is, whenever an HOA is perceived to be acting in an abusive manner the press will cover the story long and hard. In this particular case, a 48 unit townhouse association is proposing a ban on minors playing outside without adult supervision. In addition,ParentDish reports the proposed rule would prohibit kids from “playing tag, skateboarding, riding Big Wheels or using toys considered loud or obnoxious.” 

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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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Lawsuit Against Condo Highlights Complexity of FHA & Assistance Animals

The Chicago Tribune recently reported on a story where a woman suffering from panic attacks has brought a lawsuit against her condominium association for violation of federal law. While the story wasn’t clear on exactly what federal law she is claiming the association violated, there’s no doubt that the federal Fair Housing Act (“FHA”) is at issue.

Mary Jo Stevens requested, and was granted, an accommodation to keep her toy spaniel (named "Boo") which she describes as her “psychiatric service” animal to assist in the prevention of frequent panic attacks. The Association, which has a strict “no pet policy,” has permitted her to keep Boo with the following restrictions: (1) Boo is required to be kept in a pet carrier while in the lobby and laundry rooms; and (2) Ms. Stevens must use a service elevator and side doors as she comes and goes with Boo. 

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Garden Gnome Alert: It Feels Like Spring!

Okay so I admit it – I happen to think garden gnomes are cute as a bug’s ear! Surely my neighbors in the culdesac feel the same way. Maybe if we band together we can create a colony of gnomes in the HOA with a leprechaun or two thrown in for good measure. How cool would that be?! 

If you live in an HOA and have the compulsion to start a garden gnome colony or plan to make improvements to your landscape, home, or lot – here are things you need to know before you get started:

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Service Animals, Assistance Animals, the ADA and FHA - What does it all mean for HOAs?

Americans with Disabilities Act and Service Animals

 

Tomorrow changes to the Americans with Disabilities Act (“ADA”) will go into effect. One of the most widely publicized of these changes relates to “service animals.”

 

In a Fact Sheet published by the U.S. Department of Justice (“DOJ”), the DOJ describes the changes to the new rule relating to service animals as follows: “The rule defines “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. . .”

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The Importance of Covenant Enforcement

In today’s tough economic times, many associations are struggling to pay their expenses due to several delinquent homeowner accounts and, oftentimes, overlook the importance of enforcing their covenants.

The board of directors for an association has a fiduciary obligation to ensure that homeowners are complying with the covenants contained in the governing documents. Covenant enforcement does not always require an association to take legal action against its homeowners and there are several cost effective ways of ensuring compliance.

 

Oftentimes, a simple and courteous letter to the homeowner may suffice. If the letter is ignored, the association’s covenants may permit it to assess fines against homeowners for non-compliance. Before assessing a fine, the association must provide adequate notice to the homeowner and further provide to them an opportunity for a hearing before the board or fining committee to permit the offending homeowner to dispute the violation. If the board or committee is convinced that the violation exists, a fine may then be assessed. If a fine is assessed, it is typically beneficial for an association to continue to work with the homeowner to obtain compliance. It is recommended that the assessment of fines be used as a leveraging tool and not as a means of punishing the homeowners.

 

Occasionally, a fine and warning letters may not compel a homeowner to comply with the covenants. In this case, it is recommended that the association’s attorney send a demand letter to the homeowner. If the attorney demand letter does not result in the violation being cured a lawsuit, if authorized by the covenants, should be filed against the homeowner requiring them to remedy the violation. The association’s covenants may also permit it to enter a homeowner’s property, cure or remove the violation and assess the expenses incurred to the homeowner. As a part of this lawsuit, the association should request a judgment against the homeowner for all or part of the fines assessed and reasonable attorney fees and costs incurred.

 

One often overlooked method of enforcing the association’s covenants, particularly if the homeowner is a nuisance, is to institute a judicial foreclosure to remove the homeowner from the community. Of course, this option is only available if the homeowner has unpaid fines and assessment fees.

 

No matter which manner the association proceeds to enforce its covenants, it is recommended that they pursue so diligently and in a uniform manner to ensure that it is not precluded from enforcing its covenants in the future.

Posted In Covenant Enforcement , Governance
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The Importance of Signed and Recorded Covenants

The Colorado Court of Appeals, in the recent court decision of Abril Meadows Homeowner’s Association v. Castro, 211 P.3d 64 (Colo. App. 2009), ruled that an association whose declaration of covenants was unsigned did not have the right to enforce its covenants against its homeowners.

Continue Reading Posted In Covenant Enforcement , What the Courts Say , Your Governing Documents
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Rain, Rain, Go Away -- All this damage ... who will pay?

With record rainfalls this season, Colorado community associations and managers have stayed busy responding to reports of water intrusion and hail damage. After the immediate excitement subsides, our phones start ringing. Managers and board members typically ask us some variation of the following questions about insurance:

Is the association or the owner responsible for insurance coverage? This question often arises in the context of condominium and townhome communities, and the answer depends on what the governing documents and controlling statutory provisions say. Often, the documents do not give clear guidance on which party bears the burden for insuring specific components, hence the call to the attorneys. The answers sometimes come as a surprise to uneducated owners and even association boards.

We recommend that associations evaluate insurance obligations with legal counsel and their insurance professionals to ensure proper coverage and to enable clear communication with owners about what coverage applies. Through the preparation of insurance and maintenance charts that summarize association and owner obligations, and the adoption of insurance guidelines that state insurance coverage responsibilities and provide step-by-step procedures for reporting and handling claims, associations can proactively educate owners and reduce confusion when losses occur.

Continue Reading Posted In Covenant Enforcement , Governance , Money Matters , Your Governing Documents
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New Resource Concerning Alternative Energy Devices

The Governor’s Energy Office has launched an informational site about the recent Colorado legislation supporting homeowner installation of alternative energy devices. You can access the information here.

Posted In Covenant Enforcement , From Capitol Hill/Legislation
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Clearing the Air: Dealing with Secondhand Smoke

Open windows during the warmer months of the year allow you to experience the fresh, Colorado air.  But sometimes that air is not so fresh.  Secondhand tobacco smoke can make its way into your home, causing irritation and potential harm.  Community associations may have a role, and an obligation, in minimizing the impact of second-hand tobacco smoke in your home.

The Colorado Clean Indoor Air Act took effect nearly two years ago, on July 1, 2006. The Clean Indoor Air Act applies to community associations and prohibits smoking in restrooms, hallways, lobbies and other common areas in any public or private buildings, including condominium buildings, and within a fifteen foot radius of building entryways.  The law does not prevent owners from smoking in their residences, and does not clearly restrict smoking on private patios or balconies, although some associations impose more stringent smoking restrictions through their recorded covenants or rules.  Colorado community associations, and individuals, in violation of the Clean Indoor Air Act may face fines.  The law establishes a fine schedule of $200 for the first violation, $300 for the second, and $500 for the third and subsequent violations.

Continue Reading Posted In Covenant Enforcement , From Capitol Hill/Legislation
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New Legislation Supports Homeowner Use of Alternative Energy Devices

Governor Ritter signed HB 1270 into law on Thursday, April 24, 2008.  This new legislation amends C.R.S. 38-30-168, which has prohibited certain restrictions on solar energy devices since the late 1970s, and adds a new section to the Colorado Common Interest Ownership Act.  The new statutory provisions permit homeowners to install alternative energy generation devices, such as solar panels and wind generators, and other select, energy-saving improvements, despite any express prohibition of these items in the recorded covenants, conditions, and restrictions applicable to an owner’s home.  The statute will control in the event of a conflict between the terms of the recorded covenants and the legislation.  Homeowners associations and condominium associations may regulate these alternative energy devices only to the extent that the statutes allow.  Continue Reading Posted In Covenant Enforcement , From Capitol Hill/Legislation
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Options in Covenant Enforcement

The young man living at 101 Crazy Daisy Avenue hasn’t mowed his lawn in over a month. The couple just down the street has two beagles that embark on a nightly duet with the moon. Another couple has been camping in their motor home for over a month…in their front yard. And don’t forget the bank owned ranch sitting vacant on the corner. The rest of the community is up in arms and demands action. What is a conscientious Board to do?

Continue Reading Posted In Covenant Enforcement , Governance
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Maintaining the Enforceability of Fines in Your Community

The levying of fines against rule-breakers in the community is an effective tactic used by homeowner associations to curb misbehavior and to maintain a harmonious appearance within the community. In order to enforce and collect these fines, however, it is imperative that associations follow proper fining procedures as set out in the Colorado Common Interest Ownership Act (CCIOA), as well as any additional requirements that may be set forth in the Association's governing documents or policies.

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When is One Story One Story?

When the documents say how tall it is. And when it does not say how tall one story is, there is a very good chance that language in the governing document limiting a structure to one story will be unenforceable as a restrictive covenant.

In a recent Colorado Court of Appeals decision, Allen v Reed, 155 P.3rd 443 (Colo. App. 2006) the appellate court reversed the trial court’s granting a permanent injunction ordering the defendants to remove their A-frame addition to their home, which contained a bedroom loft suite. The lawsuit did not involve the Association, but was an action between two homeowners regarding an interpretation of the Association’s restrictions limiting structures to one story.   It was unclear whether the Association Board had the authority to enforce and there was no existing architectural control committee to enforce the restriction.

Continue Reading Posted In Covenant Enforcement , What the Courts Say , Your Governing Documents
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Checks Marked "PAID IN FULL" - A Trap?

QUESTION:   Our Association received a check marked Paid in Full”.  But the check was for less than the full amount owed by that owner. What should we do with the check?

ANSWER:   The act of cashing the check generally constitutes acceptance of the owner’s terms.  It is not enough to simply cross out the “Paid in Full”.  It is not enough to add a reservation of rights, such as “the acceptance of this payment is under protest”.

Before depositing the check, you have two basic options: (1) Return the check and ask for one that is not marked “Paid in Full”; or (2) Send it for deposit, knowing that it may be treated by a court as “Paid in Full”

Nevertheless, if you accidentally cash a check that purports to be “Paid in Full”, do not despair. You may prevent a full satisfaction of the account if, within 90 days of payment of the check, the Association tenders repayment of the amount of the check. However, this will only work if the Association did not have previous knowledge that the check was being submitted in full satisfaction of their account.    

Legal Tip:         If your Association uses a lockbox, checks are typically deposited automatically. Colorado law allows Association’s to challenge checks deposited in this manner if it gives owners certain information in advance. At least annually, the Association should send  a “conspicuous statement” to its owners stating that “communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to” a designated person, office or place.  

Posted In Covenant Enforcement , Governance
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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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Covenant Enforcement - The Golden Rule

A question we are frequently asked by associations is how strictly they should enforce their covenants. This was exactly the dilemma faced by a small patio home community located in North West Denver. Apparently a homeowner had painted her house golden yellow. The color was not unattractive – it actually looked quite nice – but it was clearly not one of the earth tone colors approved by the association. After some investigation by the Association’s Board of Directors, it became apparent that this was an honest mistake by the homeowner. She was new to the community and was unaware that she was restricted in her color choices. Although she was also willing to work with the Association to correct things, money was an issue. She had recently experienced some serious personal problems and could not afford to repaint her house. This is when I received a call from the Board’s president asking “What should we do?”

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Not Your Ordinary Collections Case

Below is a trial story from Larry Leff, senior partner here at WLPP:

Not Your Ordinary Collection Case

In the not too distant past our firm took on a collection case for one of our associations that took an interesting twist. We filed a lawsuit in our county court, jurisdiction under $15,000.00, against a homeowner for the non-payment of assessments. The debtor homeowner filed a counterclaim against the Association, asserting claims that the association breached its contract with him – failing to maintain the property – and   that it breached its fiduciary duty to him, among other claims. He also requested exemplary damages. During the course of litigation, the homeowner brought his account current, minus the attorney fees and costs. At trial, the Association was granted an award for its attorney fees and costs, and the court dismissed all the homeowner’s counterclaims.

The homeowner refused to satisfy the judgment, so garnishment proceedings were initiated.   The garnishment was successful and the Association collected the full amount.

Subsequent to the satisfaction, the homeowner decided he wanted to do landscaping work to enhance his property. He put up a retaining wall of concrete, railroad ties, gravel and Continue Reading Posted In Covenant Enforcement , Off the Top
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Why Call The Police When Your Association Can Handle the Problem?

Do you or your manager ever receive calls from your members about a domestic violence problem between other residents in your community? How about speeding in the public streets? What about the wild party with all the noise and disturbance at 2:00 a.m.? WHAT ARE YOU GOING TO DO ABOUT IT?! Well, you’re the Association, after all; ENFORCE THE !@##$@@ COVENANTS!! TAKE CARE OF THE PROBLEM!!

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Mark Payne quoted by the Denver Post

This past Sunday's edition of the Denver Post featured an article on the delay homeowners associations are experiencing with the removal of holiday lights and decorations by owners.  The article states that due to the unusually harsh winter, associations are relaxing their normal enforcement of restrictive covenants that require decorations to be removed within 30 days of a holiday.  Mark Payne is quoted as saying that given the circumstances it is OK for an association to grant a reprieve in taking down holiday lights.  To view this article in its entirety, click here. Posted In Covenant Enforcement , Off the Top
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What To Do About Those Holiday Decorations?

Well, here we are, Ash Wednesday; past Martin Luther King’s birthday, President’s Day, and Mardi Gras, and some homeowners still have their Christmas and Hannukah decorations on their homes from those holiday celebrations. As we all know, many restrictive covenants specify a period of time following the specific holiday during which the decorations must be removed from the house. And yet, our weather has been such that, in many cases removing those decorations may not be done safely due to the onslaught of snow storms and the accumulation of snow, all of which seems to have been exacerbated by the regular weekend snow storms. Should the board nevertheless enforce those restrictive covenants and impose fines, or is there an alternative?

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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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How Enforceable Are Those Architectural Guidelines?

We frequently get questions from our clients and their managers asking about enforcement of architectural guidelines, and particularly, the ability to either require a homeowner to obtain architectural review committee approval before making improvements, or alternatively, requiring a homeowner to remove improvements already made without committee approval. While there is no universal answer, there are some generalities. Continue Reading Posted In Covenant Enforcement , Governance
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The Pool Key: to Withhold or Not to Withhold

The weather is warm, your Association's pool is prepped for summer, and Memorial Day is just around the corner. Everything is fine until the owners currently contesting their Association debt (the same owners whose case is currently set for trial in one month) call to request the pool key. Their son's birthday falls over the weekend and the whole family will be in town to celebrate at the pool. Your Association documents say the key can be withheld if the account of the owner is not in good standing. Do you give them the key?

Continue Reading Posted In Covenant Enforcement , Governance , Money Matters , Your Governing Documents
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When Covenants Collide with the American Dream

Most covenant-controlled communities have at least one owner that does not play by the rules. The mere mention of covenants may conjure an image of that purple house, untended lawn, or RV owner in your own neighborhood - that house that becomes a sort of sideshow within the community due to the on-going battle between the association and the owner. On the rare occasion, failure to abide by the covenants results in a dream deferred.

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Community Association Institute Urges Communities to be Flexible in Wake of Katrina

I previously made an entry on this site which contained stories about a homeowners association in Florida that prohibited the housing of hurricane Katrina victims within the community. The Community Assocition Institute (CAI) has since taken a strong position with regard to communities that are disallowing homeowners from opening their homes to evacuees of hurricane Katrina in this article.

Posted In Covenant Enforcement
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Meth Labs

The number of methamphetamine laboratories found in Colorado communities continues to grow. The availability of low cost ingredients and a simple recipe for the drug has allowed unsophisticated drug "cookers" to open up shop in hotel rooms, vehicles and, more importantly, condominiums, townhouses and single family homes. Due to the flammable nature of the ingredients, meth labs often explode and cause tremendous fires. For those communities unlucky enough to have a meth lab, the fact that it did not explode into a fireball seems like little consolation. Often by the time law enforcement has enough evidence to raid the unit, the damage has been done.

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The Fear of Setting Precedents

Association Boards often contact our office to determine how to deal with a regularly-occurring problem that just doesn't seem to require or deserve the response that has customarily been given. Understandably, the Board desires to treat each owner fairly and believes that to do so, it must treat each owner similarly. However, the value of a Board of Directors is that it is composed of people who each bring their life experiences and judgment to the position. A Board need notand in factshould not treat each owner in an identical manner when the circumstances do not justify such treatment. Instead, the Board should exercise its collective business judgment in a good faith and reasonable manner to treat similar circumstances similarly. This is much different than treating each owner in the same manner.

Continue Reading Posted In Covenant Enforcement , Governance
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