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.
The Colorado legislature provided some relief to associations with these overburdensome amendment requirements by providing a mechanism whereby associations may petition the court for amendment. See 38-33.3-217(7). SB 100 further assists associations by amending the Colorado Common Interest Ownership Act (CCIOA) Section 38-33.3-217(1), providing a cap of 67% on the required percentage of membership votes necessary to amend an association's declaration. Additionally, the new law provides that the declaration may be amended by the affirmative vote of unit owners holding more than 50% of the votes in the association, if the declaration so specifies. The declaration may specify any percentage less than 67% so long as the minimum requirement of "more than 50%" is met.
Associations need not amend their current declaration to take advantage of the 67% cap. However, in order to have a lesser requirement (such as "more than 50%"), the declaration must so specify.
If an association's declaration requires the consent or approval of first mortgagees, the association may now follow these steps to appease the requirement:
1) Send a dated, written notice together with a copy of any proposed amendment via certified mail to each first mortgagee; and
2) cause the dated notice, together with information on how to obtain a copy of the proposed amendment, to be printed at least twice - at least one week apart - in a newspaper of general circulation in the county in which the community is located.
A first mortgagee that does not send a negative response within sixty (60) days after the date of the notice shall be deemed to have approved the proposed amendment.
Hopefully those associations that have been burdened by impracticable amendment requirements will gain relief through this newly adopted law.