With the legislative session in the rear view mirror, it’s time to discuss the changes and how they will impact you and your communities. All Board members of current clients are invited to attend our monthly education series at no cost. These classes occur every month on the third Thursday at 5:00 p.m., and are held by Zoom. This month’s legislative update occurs on June 17.

Register in advance for this meeting. After registering, you will receive a confirmation email containing information about joining the meeting.

I look forward to seeing you there!

I went to school at the University of Oklahoma, four hours south of the home of the Westboro Baptist Church. The Westboro Baptist Church has been, at times, infamous for the protests its members lodge at military funerals, colleges, and large public events. Members’ signs use offensive terms for LGBTQIA+ individuals, indicate that God hates people who identify as LGBTQIA+, and advocate anti-Semitic, Islamophobic, and other positions that are too crass to spell out here. Their offensive protests are protected, First Amendment speech. The group protested on my campus on occasion, and it’s with some pride that I recall being called a whore for wearing my sorority’s letters.

House Bill 1310 invites the Westboro Baptist Church to your neighborhood.

Introduced on May 10, 2021, HB 1310 seems to offer a great idea – increased protections for free speech in community associations! However, as drafted, the bill will mandate that communities allow the display of all speech that is protected under the First Amendment from interference by the government. It will prevent community associations from regulating the appearance of their communities. Covenants that prohibit flags and signs will no longer be enforceable. I’ll be able to post a sign in my front yard advertising my part-time basket-weaving business. The pro-life owner and the pro-choice owner will get to post their own competing signs, complete with whatever associated images you can conceive. The Association could certainly limit the size of a confederate battle flag flying next to the house with the BLM sign, but it couldn’t prohibit the flag itself.

This is not going to work well for communities. While it is already extremely difficult to regulate flags and signs, the outright prohibitions on these items written into many covenants help communities avoid political conflicts and value determinations. Community associations are not governments and are not state actors, and HB 1310 blurs the line between the rules a private corporation can impose on its (voluntary!) members and the fundamental rights a government cannot infringe upon.

Current law includes guardrails that limit public policy exceptions to covenants that prohibit signs and flags to allow the display of the American flag, service flags, political signs in narrowly-defined periods, and religious items in specified locations and circumstances. Community associations must take action against discriminatory activities where such action is within the scope of their powers, such as requiring the removal of a “white power” sign from a yard. This law will prevent compliance with anti-discrimination laws, as as association “shall not prohibit or regulate the display of [flags, window signs, or yard signs] on the basis of their subject matter, message, or content.”

Residents who want to espouse their political beliefs are permitted to do so in public fora, just like the Westboro Baptist Church. Residents who want to live quietly in uncluttered and peaceful communities should be allowed to do so. House Bill 1310 is poorly conceived and will create liabilities and expenses for communities, and greatly exacerbate conflicts that are already difficult to manage.

The Transportation and Local Government Committee will hold its hearing on the bill on May 25 at 1:30 in the Legislative Services Building, Hearing Room A. You can sign up to testify the day beforehand here. Call and e-mail your legislators and the committee members and tell them to vote NO on House Bill 1310!

As of the moment of this writing, we are in the thick of vote counting in our national election, with allegations of fraud, cheating, and mishandling ballots running rampant. On the flip side are allegations of voter intimidation and ballot counting intimidation. While these stories surely affect all of us in different ways, even though occurring at a national or state level, unfortunately we oftentimes see the same allegations at a very local level – in community associations!

Enter the election and ballot counting processes for community associations, which are necessarily compounded by restrictions on personal attendance due to COVID-19. Due to COVID-19, nearly 100% of our clients are conducting their annual meetings virtually – most of them by video conference. While virtual meetings are entirely acceptable, there are still certain legal requirements to keep in mind that may result in conducting annual meetings in more than one phase so as to protect election integrity.

When speaking about annual meetings, generally we are contemplating elections of directors and in somewhat fewer instances, budget consideration. There may be other matters that your community is taking action on at your meeting, such as document amendments. In any event, there are a few things to keep in mind with respect to voting, as set out in CCIOA:

  • votes for contested positions on the executive board shall be taken by secret ballot;
  • at the discretion of the board, or upon the request of 20% of the owners who are present in person or by proxy at the meeting (if a quorum has been achieved), any other matter on which owners are entitled to vote must be by secret ballot;
  • ballots must be counted by a neutral third party or by a committee of volunteers. The volunteers must be owners who are selected or appointed at an open meeting, in a fair manner, by the chair of the board or by another person presiding during that portion of the meeting. Volunteers must not be board members, and in the case of a contested election for a board position, must not be candidates;
  • the results of a vote taken by secret ballot must be reported without reference to the names, addresses, or other identifying information of unit owners participating in the vote; and
  • votes allocated to a unit may be cast by a proxy signed by the unit owner. Proxies are not valid if obtained through fraud or misrepresentation.

The techniques to achieve these requirements can vary, but there are some standards that have become widely accepted. If you have any questions about how to comply with these requirements and protect the integrity of your meetings and elections, please feel free to give us a call.

As of today, the General Election is 43 days away.  While like most Americans I have very strong opinions and beliefs regarding the cultural and electoral issues facing our country, I also live in an HOA and am taking the signage rules and my neighbors into account when putting up signs that mirror my beliefs relating to social justice issues, ballot initiatives and candidates running for office.

For those of you who are not aware of it, Colorado law regulates political signs in HOAs and here’s what boards, managers and homeowners need to know:

● The Colorado Common Interest Ownership Act (“CCIOA”), at C.R.S. 38-33.3-106.5(1)(c), governs the placement of political signs in HOAs.

● HOAs may regulate the timeframe for the display of political signs, by prohibiting the display of these signs earlier than 45 days before an election and more than 7 days after an election.

● HOAs may regulate the size of political signs which may be displayed on an owner’s property or in the window of a unit. CCIOA provides that HOAs may limit the maximum size of political signs to the lesser of: (1) the maximum size allowed by any applicable city, town, or county ordinance that regulates the size of political signs on residential property; or (2) thirty-six inches by forty-eight inches.

● HOAs may limit the number of political signs which may be displayed to 1 sign per political office or ballot issue that is contested in an upcoming election.

● HOAs are permitted to prohibit residents from placing political signs on the common elements of the community.

● HOAs cannot prohibit owners of condominiums from placing political signs in the windows of their units or within the boundaries of their units.

● CCIOA defines a political sign as “. . . a sign that carries a message intended to influence the outcome of an election, including supporting or opposing the election of a candidate, the recall of a public official, or the passage of a ballot issue.”

HOAs can certainly choose not to regulate the placement of political signs in their communities.  However, if your HOA prohibits political signs in your community, CCIOA supersedes that prohibition and permits the placement of political signs in your HOA 45 days before November 3rd.  However, those signs must be removed within 7 days after the election.

If board of directors or management have questions pertaining to what falls within the definition of a “political sign,” they should consult with the attorney who represents their HOA for guidance.

Finally, while I understand that passions are very high right now, please be considerate of your neighbors and exercise good judgment when installing political signs. There is no need to fight with each other about our political beliefs and I am hopeful that residents in HOAs will display leadership in demonstrating tolerance with our neighbors who might not agree with our strongly held beliefs.

 

My most recent brush with the electoral process as a candidate occurred in 1989. I was primed and ready to be the Sergeant at Arms of my elementary school student council, and willing to campaign, press palms, kiss babies, and bribe the administration to make that dream a reality. Sure, I didn’t know what a Sergeant at Arms actually did, but I knew it was my calling. I had stickers and everything.

After the returns were tallied I was devastated to lose to the cute kid who forgot his campaign speech and thus garnered the sympathy demographic. I immediately moved to another state.

Over thirty years later, I’m a community association attorney living with the new reality caused by the pandemic. Many clients are conducting meetings of differing sizes, purposes, and civility by electronic means. Zoom, WebEx, Teams, and other applications facilitate these meetings, but taking attendance, verifying quorum, muting and unmuting speakers throughout the meeting, handling voting and polling, and maintaining order is a little more difficult electronically than it is in person. Scrolling through my handy-dandy copy of Robert’s Rules of Order, I stopped on the definition of “Sergeant at Arms” (finally!) and thought about the position and its value in client meetings today. The Sergeant at Arms assists in keeping the meeting orderly as directed by the meeting chairperson. It can be a broad job description; no wonder I had no idea what I was running for.

Administering the logistical side of an electronic meeting distracts from the business at hand. To ensure that Board members and important attendees, such as management and counsel, are ready and available to conduct and assist with business, Boards may consider appointing a Sergeant at Arms to handle the administrative side of the electronic meeting. This person should be extremely conversant in the platform selected by the Board, and ready to help out attendees who are less familiar with electronic meetings so that everyone has a fair chance to attend and be enfranchised. Plan in advance for how you will conduct your meetings this fall, and consider seeking volunteers or speaking to your management company today, to ensure that your meetings will run smoothly and legally this autumn.

I’ll probably always regret not being politically savvy enough to target the elementary school sympathy demographic, but am grateful that the lessons I learned as a child are so useful today!

Many clients are facing difficult decisions related to COVID-19. Should we open the pool? Should we waive late fees? Should we tell that owner she needs to repaint her house? Service as a director on a community association Board is never easy, but the pandemic has created stark and binary decisions that are not easy for anyone to make. These decisions are complicated by today’s political and social climate.

Community associations are nonprofit corporations, funded by their member assessments. They generally do not have large slush funds for lean times, and the decision to relax in collection efforts can have negative, real world impacts when the community can’t pay for its insurance. Association Board members have a fiduciary duty to enforce the covenants. Sensitive enforcement, recognizing that literally millions of people are out of work right now, can result in unkempt homes that will anger other owners. Opening the pool (or not opening the pool) are both defensible decisions, and regardless of the decision, some owners will be furious with the Board. You are between a rock and a hard place.

When a Board is faced with a difficult decision, its job is to make that decision. Sitting on your hands and worrying about how people will react is an abdication of a Board member’s duty to act on behalf of the corporation. Board members have access to the information and advice necessary to make an informed and prudent decision; this information is often not available to the membership at large. The business judgment rule offers protections for individual Board members who make decisions in the exercise of their reasonable business judgment, but they must actually make a decision! If you are not willing to make a hard decision while serving your community on your association Board, consider whether your talents and time are better spent in other service. You do your community a disservice when you fail to fulfill your duty to act on the association’s behalf.

Board service is hard. Your time and talents are appreciated and valued. Now put them to work, or let someone else step in!

In response to the economic destruction wrought by COVID-19, Senators Faith Winter and Julie Gonzales, and Representative Leslie Herod introduced Senate Bill 211 on June 1, 2020. SB 20-211 quickly made its way through the chamber and was referred to the Committee of the Whole today. It has not yet made its way to the House, but the speed with which it flew through the Senate indicates this is a bill with a lot of support. It is also a bill that can significantly harm nonprofit community associations and prevent them from collecting the assessments necessary to pay their regular bills, such as insurance, mainteannce expenses, and management fees.

The bill, as amended, will establish the right to a moratorium on “extraordinary collection actions” through November 1, 2020, with potential extension through February 1, 2021. Extraordinary collection actions are garnishments, attachments, levies, and executions to collect or enforce a judgment on a debt. “Debt” does not include child support obligations, but does include past-due community association assessments. The bill mandates certain disclosures from a judgment creditor before attempting to undertake these extraordinary collection actions. This disclosure will inform the judgment debtor that they have the right to temporarily suspend the collection action if they have experienced hardship (directly or indirectly) due to the COVID-19 emergency, and the steps to take to achieve this suspension.

The bill narrowly establishes a time frame to suspend garnishments and other frequently used collection activities, and a debtor must reach out to the creditor to take advantage of this suspension. If all debtor homeowners take advantage of the right of suspension, however, communities may find themselves with delinquencies that exceed the thresholds for FHA certification, unable to qualify for bank loans, and forced to defer maintenance and incur the liability of that deferral. While COVID-19 is certainly a crisis in this country, we urge legislators to carve community association collection efforts out of the restrictions of SB 20-211, as community associations are typically nonprofit corporations funded solely by assessments, the debts that are being collected generally existed long before the pandemic, the owners who are being collected from have already had the opportunity to enter into payment plans under C.R.S. 38-33.3-316.3, and the unintended consequences of a collection moratorium will negatively impact all members of our communities and force paying owners to subsidize those who do not pay.

Some insurance companies have indicated that claims related to COVID-19 will be denied (depending on the nature of the claim and the specifics of the individual policy).  In light of this risk, what protections exist for the individual board members in the event of a claim where insurance coverage does not apply?  The good news is that board members are generally personally protected from such claims so long as the board member was exercising his or her reasonable business judgment in reliance on the advice of professionals.  However, this protection does not prevent a claim from being filed, necessitating a defense.  In most instances, the costs of this defense will become an association expense where insurance denies coverage.

The first place to look for the details specific to your association is in your governing documents.  Depending on the age of the documents, an indemnification clause or other board member protection may be found in your declaration, your bylaws, or your articles of incorporation.  These documents often require the association to indemnify a board member for any claims against them individually that arise out of the board member’s actions and duties as a board member.

If the governing documents do not address the issue, state law contains provisions that provide board member protections as well.  In general, CCIOA provides that board members who are elected by the membership are generally not liable for actions taken in the performance of their duties, except when the board member’s actions are wanton and willful.

Colorado’s Revised Nonprofit Corporation Act provides additional guidance.  This Act limits the liability of directors for acts performed in good faith.  The Act further permits indemnification for directors (current or former) so long as the conduct was performed in good faith and was in the nonprofit corporation’s best interests.  The Act allows the Association to either advance or reimburse a director’s expenses incurred in defending an action against such director.

Therefore, even when there is no insurance coverage, it is clear that there are protections for individual board members who are performing their duties to the association in good faith.  However, the association ultimately remains responsible for the expense of defending an action brought against a board member.  In the event of claims against a board member or the association itself, such defense expenses will be considered common expenses that ultimately all members of the community will be obligated to pay.

Remember, as always, to discuss this sort of matter with your attorney as they can provide you with advice specific to your association’s governing documents, and your situation.

Federal, state, and local responses to COVID-19 are changing quickly.  Our COVID-19 related communications are based on the facts and guidance available today.  Always look for the most up-to-date information when making decisions for your communities.

Social distancing restrictions and recommendations are likely to continue for some time.  In light of this new reality, what happens to Association meetings?  The good news is that, in general, board and member meetings may be conducted using telephonic or video conferencing services under the Colorado Revised Nonprofit Corporation Act, so long as all attendees can hear one another and be heard.  There are many available options, such as Zoom, Google Meet, Gotomeeting.com, Skype, Microsoft Teams, Webex, and FreeConferenceCall.com that you can explore to determine what works best for your community’s needs and budget.

After selecting a service and setting a date and time for the Board or Member meeting, send notice to the community as required by your Bylaws.  Board meetings are open to attendance by all members, so consider the best means of communicating dial-in numbers and passwords.  All community associations should have a policy governing the conduct of meetings.  Consider how the reality of a virtual meeting intersects with your current policy.  You may want to explore more specific details and protocols for muting and selecting attendees to ensure that owners are able to speak at designated times, without turning the meeting into a chorus of “sorry, that was my dog” and microphone feedback.  Many conferencing services allow the meeting host to mute individuals so that the meeting proceeds in an orderly fashion, while permitting homeowners to speak at designated times.  If you amend your policy governing the conduct of meetings, or adopt a new policy for these specific types of meetings, adopt the changes in compliance with your policy governing the adoption and amendment of policies.

Member meetings are another issue altogether.  Generally speaking, under Colorado’s Nonprofit Corporation Act, voting may be conducted by written ballot.  Some matters, like budget ratification, can be handled almost the same as an in-person meeting.  Other matters, such as a contested election for the Board, will take more consideration.  Secret balloting will undoubtedly take a longer time than an in-person vote by acclamation.  You may be able to take action by written ballot, but the nature of the action will dictate the process, as will your individual Bylaws.  It may be that an election only becomes contested when an individual self-nominates from the floor at the meeting.  Be prepared to be flexible, and have a plan for contingencies.  Consider having counsel attend the meetings to help you avoid confusion and errors.

Thoughtful planning will help you lead your communities through this crisis.  Life and community governance are certainly going to change as a result of the pandemic, and your leadership will help keep your community safe and functioning.  As always, please contact your attorney for advice specific to your community’s needs and legal requirements.

This morning, the Colorado Senate on a 32 to 1 vote, passed Senate Bill 20-126 (“SB 126”) on third reading.  Senators Tammy Story (D-Boulder, Denver, Gilpin and Jefferson Counties) and Jim Smallwood (R-Douglas County) are the primary sponsors of the bill and introduced this bipartisan piece of legislation to require HOAs in Colorado to permit the existence of licensed family child care homes in their communities.

These sponsors claim that SB 126 is necessary because many HOAs across Colorado prohibit residents from having day care businesses in their homes and since so many folks live in HOAs in Colorado, this has created a day care desert.  In particular, SB 126 provides that regardless of whether there are prohibitions on day care businesses in the declaration, bylaws or rules and regulations of an HOA, as a matter of public policy, HOAs cannot prohibit the operation of licensed day care homes in their communities.

It is true that it is not uncommon for HOAs in Colorado to prohibit day care businesses in their communities.  This is largely because of the potential liability to the HOAs associated with these businesses, the noise related nuisances that day cares can create and the fact that the common elements and amenities of HOAs are intended for the use of the residents of the HOAs.  The parks, tot lots, swimming pools and other amenities of HOAs, were never intended to become overcrowded by children in day care who do not live in these communities.  In addition, kids will be kids, and it is not uncommon for them to be hurt while using slides, swings, swimming pools or just tripping over a curb.

Luckily for HOAs in Colorado, Senator Angela Williams recognized the risk of kids in day care being hurt on the common elements and while using the amenities and was adamant that this liability should rest with the owners and operators of these day care businesses and should not be passed onto the HOAs.  As a result, Senator Williams passed an amendment on the floor of the Senate which permits HOAs to require the owners and operators of day care businesses to carry liability insurance coverage and that the coverage shall name the HOA as an additional insured and be primary over the liability coverage which the HOA carries.

SB 126 will now move over to the Colorado House of Representatives for consideration.  We expect the bill to pass the House and ultimately be signed into law.  Keep an eye out on this blog for updates on SB 126 and for recommendations on how to address the requirements of this legislative, if it is signed into law.