Pool Rules: A Fair Housing Concern

The heat hitting Denver this weekend has reminded several clients to ask us to review their pool rules.  Community associations are "housing providers" under the Federal Fair Housing Amendments Act, and thus our pool rules need to comply with Fair Housing requirements.  

Fair Housing prohibits housing discrimination based on the following factors:

  • Race
  • Color
  • Religion
  • Sex
  • National Origin
  • Familial Status
  • Disability 

A rule that might seem reasonable and appropriate to a community, such as requiring all children to wear swim diapers, can result in a Fair Housing complaint.  If you're revising your rules, look to objective guidelines for your restrictions.  Health and safety requirements apply to everyone, regardless of whether they are a member of a protected class.  It is possible to create rules that accomplish your goals without running afoul of the law.  Talk to your attorneys to ensure that your concerns are appropriate, and that your restrictions are expressed in a manner that protects your community from a Fair Housing complaint.

In the meantime - stay cool out there!

Posted In Your Governing Documents

Clarifying the Collection Notice Requirements to Delinquent Homeowners

On January 1, 2014, new legislation went into effect requiring associations to provide a specific written notice to delinquent homeowners. This notice is required prior to turning over a matter for collections to an attorney or collection agency.

The details of the notice are as follows:

a. It must contain the amount due with an accounting of how the total was determined (a running balance ledger going back to a -0- balance is sufficient);

b.  A statement as to whether the opportunity to enter into a payment plan exists and instructions for contacting the community association manager and/or board member to enter into such a payment plan;

c.  The name and contact information for the individual the unit owner may contact to request a copy of the unit owner’s ledger in order to verify the amount of the delinquency; and

d.  A statement that action is required to cure the delinquency and that failure to do so within thirty days may result in the unit owner’s delinquent account being turned over to a collection agency, a lawsuit being filed against the owner, the filing and foreclosure of a lien against the unit owner’s property or other remedies available under Colorado law.

Continue Reading Posted In Governance , Money Matters , Your Governing Documents

Frozen? Snow and Ice - Don't Let It Go

Winter in Colorado is sure to bring cold weather, snow, and urgent phone calls about broken water lines and slip-and-fall accidents on common areas. The problems usually start when the temperature begins to warm up after a cold spell or heavy snowfall. Water suddenly streams out of broken pipes, or snow melts and then freezes when the temperature drops at night. Whatever the circumstances, managers and board members can attest to the amount of work involved responding to owners, sorting through damages and injuries, dealing with insurance, and trying to understand legal obligations for water and slip-and-fall incidents. Most of us would love to find a magic wand that we could wave to make these problems disappear. Unfortunately, magic is not a reliable solution.

Associations can best position themselves for dealing with slip-and-fall situations by planning ahead and communicating with owners along the way. If your association is not sure what responsibility it has to remove snow and ice hazards from common areas, here are some risk management steps to help.

Review the association’s governing documents to determine responsibilities for snow removal. Different communities have different responsibilities, and your documents give direction. A condominium community may have the general obligation to remove snow from the common elements, while townhome documents may only require the association to take care of parking lots. A failure to comply with the covenants could result in claims of breach by the association, so confirming responsibilities up-front is crucial.

Continue Reading Posted In Your Governing Documents

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
Comments / Questions (0) | Permalink

Prevention and Preparedness: How does your community deal with emergencies?

September is National Preparedness Month. For the past few years, we have  devoted a September post to reminders of preventative steps that can help keep your community safe and prepared for emergencies. By implementing preventative measures now, your association may reduce injury and liability later. The following focus areas may assist your association in identifying how prepared it is for the next emergency:

Review governing documents and insurance policies. Ensure that insurance coverage and reserve funds meet the association’s needs as well as the requirements set forth in the declaration and state statutes. An insurance and maintenance chart and insurance guidelines prepared by the association’s attorney, in consultation with the insurance agent, can serve as one way of notifying owners of their responsibilities. We also recommend that associations check their fidelity coverage and purchase crime coverage to protect against fraud and embezzlement.

Continue Reading Posted In Governance , Your Governing Documents

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
Comments / Questions (0) | Permalink

Annual Meetings: Planning for Success

Many associations schedule their annual member and budget ratification meetings in the last months of the year. Annual meetings give an opportunity for owners to vote on one of the primary matters within their control: the election of board members. More members typically attend these meetings than board meetings, and they expect to receive information about important association business and have a chance to ask questions about board actions. Associations should recognize the need to balance member participation and information dissemination with meeting control. No owner wants to attend long, unproductive meetings, nor do members want to show up to the meeting only to learn that they cannot conduct business due to a technical legal issue such as improper notice or lack of quorum.

Continue Reading Posted In Governance , Your Governing Documents

New Lending Rules Continued - HUD Requirements

You will remember from a recent posting that we discussed the new Fannie Mae guidelines, and the anticipated HUD regulations. As noted,  HUD did in fact adopt new temporary regulations that went into effect on December 7, 2009, and remain effective until December 31, 2010, at which time the new permanent HUD regulations will become effective. The new HUD temporary regulations are found in HUD Mortgagee Letter 2009-46 A, and can be found  here. The new HUD permanent regulations are found in HUD Mortgagee Letter 2009-46 B, and can be found here. It is important to note that condominium projects under developer control and under construction or being converted have different standards. This posting does not address those standards.

Continue Reading Posted In Governance , Money Matters , Off the Top , Your Governing Documents

New Lending Rules - Fannie Mae and HUD

The fallout from our current economic crisis is hitting all of us, sometimes in ways we least expect. While many homeowners are struggling to hold onto their homes, many are faced with the prospect of having to sell. In the present economy, that is difficult enough. However, for those whose homes are condominiums, Fannie Mae has implemented new guidelines that can make it more difficult than previously to complete a sale. HUD has adopted similar new temporary regulations which went into effect on December 7, 2009 and remain effective until December 31. 2010, at which time more restrictive permanent regulations become effective.

Continue Reading Posted In Governance , Money Matters , Off the Top , Your Governing Documents

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
Comments / Questions (0) | Permalink

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

New Laws Affect Association Governance

The 2009 legislative session began with relatively few bills affecting Colorado common interest communities. But the last few weeks of the session more than made up for the slow start. New laws concerning community association governance do the following: (i) mandate that association boards have access to extensive, specific information to assist with their decision-making, (ii) establish qualifications for individuals serving as committee chairs, and (iii) require policies concerning reserve programs. Other laws enacted but not discussed in this article include restrictions on affordable housing units, modifications to foreclosure time frames for some borrowers, and changes to provisions of the Colorado Common Interest Ownership Act applicable to small, exempt communities. The table below gives a summary of the new laws affecting association governance, the action required by associations, and the effective dates of the laws.

Continue Reading Posted In From Capitol Hill/Legislation , Governance , Your Governing Documents

Towing of Illegally Parked Vehicles

The towing of illegally parked vehicles is a topic that is regularly brought to our attention. In most instances, the problem involves a commercial vehicle, motor home, trailer or truck that that is parked in violation of the Association’s covenants or rules. It may also involve a vehicle that appears to have been abandoned or is not properly registered with the State of Colorado. In more egregious instances, the vehicle is parked illegally in a designated handicap parking space or fire lane. In any instance, the question is: “Can we tow the illegally parked vehicle?

Continue Reading Posted In Governance , Your Governing Documents
Comments / Questions (0) | Permalink

Should Your Covenants Be Amended?

Times change, people change, laws changes, can your covenants change too? The simple answer to this question is yes, they can. Two of the most frequent questions we get is how is this done and when should we consider it? Below are our answers to these questions.


When Should Your Covenants Be Amended?


At WLPP we don’t believe there is any hard and fast rule as to when your covenants should be amended. In general, we recommend that they be reviewed at least every ten years to make sure that they are up to date with current laws and practice. However, a sooner review may be warranted whenever there are significant changes to Colorado law addressing homeowners associations (for example, Senate Bill 05-100). There may be terms that are no longer applicable to your community, outdated restrictions, or terms that no longer comply with current law. 


Continue Reading Posted In Governance , Your Governing Documents
Comments / Questions (0) | Permalink

Hearing Due Process - Now What?

Our legislature continues to tinker with the responsible governance policies made mandatory several years ago. This year Governor Ritter signed H.B. 1135 which amends Section 209.5 of the Colorado Common Interest Ownership Act (CCIOA). Section 209.5 first became law in 2005 by what has commonly been referred to as S.B. 100 which required every association to adopt a responsible governance policy concerning enforcement of covenants and rules, including notice and hearing procedures and a schedule of fines. Prior to adoption of S.B. 100, CCIOA permitted an association to levy reasonable fines for violations of the declaration, bylaws and rules and regulations, but only after notice to the offending owner and an opportunity for a hearing. Continue Reading Posted In From Capitol Hill/Legislation , Governance , Your Governing Documents

Community Association Legal Audit (Part 1 of 2)

Community association board members fill tough roles that require a great deal of attention to association business. We understand that, as board member volunteers, you need guidance from professionals to facilitate informed decision-making, allowing you to uphold your fiduciary duties to the association that you serve. To assist you in evaluating the legal priorities for your community, we have created this Legal Audit checklist. 

Place a check mark in the box beside each statement that applies to your community association.

My community association has . . .

adopted the seven mandatory Senate Bill 05-100 policies

Senate Bill 05-100 requires all associations to adopt seven different responsible governance policies concerning (1) the adoption and amendment of policies, (2) board member conflicting interest transactions, (3) covenant enforcement and fines, (4) collection of delinquent assessments, (5) conduct of meetings, (6) inspection and copying of records and (7) reserve fund investments.

adopted the Senate Bill 06-89 dispute resolution policy

Senate Bill 06-89 requires all associations to adopt a policy concerning disputes between owners and the association.

updated Senate Bill 05-100 policies to conform to Senate Bill 06-89 requirements

Senate Bill 06-89 modified some of the terms of Senate Bill 05-100, creating recommended changes to the responsible governance policies.

Continue Reading Posted In Governance , Money Matters , Your Governing Documents

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
Comments / Questions (0) | Permalink

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
Comments / Questions (0) | Permalink

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
Comments / Questions (0) | Permalink

Declaration Amendment Simplified by SB 100

Some Colorado community associations have been burdened for many years by declarations that require unattainably high vote requirements for amendments. Some of these documents not only require a high percentage of votes from members, but may also require the assent of first mortgagees in order to effectuate any changes to the document. Any association that has attempted to garner consents from mortgagees knows that this feat is nearly impossible.

Continue Reading Posted In Your Governing Documents
Comments / Questions (0) | Permalink

Is Your Community Built on a Solid Foundation?

The basic foundation of a Colorado Community Association is its governing documents. Each association is created and governed by several documents: the Covenants, Conditions and Restrictions, the Bylaws, and the Articles of Incorporation.

Continue Reading Posted In Your Governing Documents
Comments / Questions (0) | Permalink

Colorado Common Interest Ownership Act (CCIOA)