The Governor signed House Bill 1040 into law last week, enshrining into law the obligation for community associations to provide notice to community members should it need to restrict access to common elements for more than seventy-two hours. While this is an appropriate, fair, and laudable goal, many other provisions of House Bill 1040 create liabilities and ambiguities for common interest communities.

The bill mandates that associations “preserve and protect unit owners’ ability to use and enjoy common elements.” In other words, a Board’s business decision to close common elements is now subject to an affirmative duty to preserve and protect, not withstanding extenuating circumstances that make use and enjoyment of the common elements detrimental to the rest of the community. Just today I worked with a client with a common element hot tub that is obsolete, only used by a few short term renters, and that will cost tens of thousands of dollars to maintain (and six figures to replace) when the community has many other more pressing financial obligations. Does the association breach its fiduciary duty if it spends money to pay its other bills rather than having the hot tub open and tested even when no one uses it?

The association will probably have to raise its assessments to pay the bills, rather than make a decision to close the tub for an undetermined time and risk litigation from a short term landlord. Would be a shame if it couldn’t collect on those assessments.

The bill also prohibits associations from “unreasonably” restricting or prohibiting access to, or enjoyment of, any common element.

You know that boiler rooms, roofs, and management office spaces are typically common elements in condominiums, right? Some condominiums even rent out common element management units to third parties. Are Boards really now prohibited from excluding owners from drunken rooftop picnics on flat roofs? Sure, that exclusion is probably reasonable, but why should Boards even have to justify this level of control? And if you were on Mars in 2020, you might not be aware of the conflicts between homeowners and Boards regarding common element pool and clubhouse closures related to COVID-19. Many homeowners considered closures to be completely unreasonable, and just as many considered them to be necessary and reasonable. This bill undermines a Board’s decision to close common elements in the face of a new and unknown virus and the risks associated with death and, even worse – no insurance. I hope we won’t have another pandemic any time soon.

I firmly believe that owners are entitled to reasonable information from their Boards about common element closures. Unfortunately, House Bill 1040 goes beyond that intention to create ambiguities and liabilities for Boards that exercise reasonable business judgment in light of their duties to the community as a whole.

And one last consideration; while the bill does not amend the CCIOA section that outline the CCIOA provisions that apply to communities formed before July 1, 1992, its language indicates it probably does apply to those pre-CCIOA communities. Plan accordingly.

If you pay attention to this blog or are involved in Colorado community association activities, you’ve certainly seen recent news stories detailing the impacts of HOA foreclosures on residents. While most of the foreclosures in the stories arose when owners failed to pay fines after violating rules or covenants, other foreclosures occurred because the owners failed to pay their regular maintenance and operating assessments.

Note: This blog was drafted based on the proposed strike-below for HB 1137. The strike-below was amended in committee this afternoon to address our concerns with culturally competent language and bidding 80% of the fair market value of a property. We appreciate the amendments and look forward to reviewing the pre-amended version as the bill continues the legislative process.

House Bill 1137 was introduced in February and hit the House Transportation and Local Government Committee on March 9. At the hearing, legislators heard testimony from individuals impacted by fines and enforcement in their communities, as well as Board members and professionals who have legal duties to enforce the promises homeowners make to one another and their communities. The bill was laid over while the interested parties discussed potential amendments and compromises.

The CAI Colorado Legislative Action Committee proposed a strike-below bill that would allow associations to take more matters to small claims court (where attorneys cannot appear unless the Defendant brings an attorney), eliminate daily fines, increase existing due process protections for homeowners, and most crucially, prohibit foreclosures based solely on fines and attorney fees associated with those fines. After all, it is clear from the media and testimony that no one should lose their home because of an oil stain on the driveway.

Unfortunately, HB 1137’s sponsor has introduced a strike-below amendment that will effectively eliminate all HOA foreclosures, decrease the availability of federally-backed financing in communities, force community associations to risk more discrimination claims, and increase legal expenses for communities as well as insurance costs.

Let’s discuss the bill in detail.

Small Claims
Small Claims courts in Colorado are courts with specific and limited jurisdiction. Corporations generally have to appear before courts using attorneys, but in Small Claims, no attorneys are permitted unless the Defendant files a notice of attorney representation. A nonprofit corporation can be represented by a nonattorney officer or an employee. House Bill 1137, as amended, increases Small Claims jurisdiction to allow parties to enforce rights and responsibilities arising under the community governing documents. Communities have already had the authority to enforce restrictive covenants in Small Claims.

In practice, this amendment will have extremely limited impacts on association activities and attorney fees. If the Association is a plaintiff, most will still have legal counsel file suit in County Court or District Court. Nonattorney Board members rarely have the time or inclination to file a lawsuit in the corporation’s name in Small Claims even where jurisdiction already exists. If the Association is a defendant, it will almost certainly file a Notice of Representation of its attorney before the return date, as is the common practice with Small Claims suits today. Legislation for the sake of legislation that does not actually resolve a problem is a waste of effort.

Liens and Attorney Fees
House Bill 1137 limits the lien for attorney fees to the amount a court determines is reasonable as provided by the Colorado Rules of Civil Procedure, but this forces associations to file lawsuits or treat all attorney fees as a cost of doing business. Most legal interactions resolve without necessity of litigation, but if communities are loathe to seek legal assistance knowing they will have to bear the expense caused by a rule-breaking owner, disputes that could be resolved with a demand letter are more likely to escalate to untenable situations. In addition, the revisions to CCIOA ignore other CCIOA provisions that allow for attorney fees without need of filing a lawsuit, building ambiguities into the already-confusing statutory scheme.

Notice and Due Process
CAI supports notice and the opportunity for hearings before communities impose fines. We want homeowners and Boards to discuss and understand expectations and to act reasonably with one another. Our proposed strike-below increases communications and these discussions. It does not seem fair for a letter to tell an owner “You are in violation of the covenants.” It should tell an owner, “You are in violation of the covenants, you need to repaint the trim on the north elevation of the property.”

Community associations are housing providers subject to Fair Housing prohibitions against discrimination. House Bill 1137 requires the community to send enforcement and delinquency notices “in a manner that is culturally competent and linguistically appropriate.” What does that mean? If it means the management company needs to find out an individual’s preferred language of communication before sending a notice, how is the management company supposed to do that? Even worse, if a Board or management company makes an assumption about an owner’s culture or language based on the owner’s name, it seems a ready-made national origin discrimination claim. As with much of House Bill 1137, we have language that might have good intentions, but has no recognition of the realities of community association management and practice.

Fines
Fines are the most effective means for an association to compel an owner’s compliance without involving an attorney. In an attempt to prevent fines from actually impacting owners who break the rules, the amended House Bill 1137 caps the total amount of fines for any violation at $500.00. This means that if a homeowner wants to paint their house pink, has that request denied, and does it anyway, the homeowner will be allowed to violate the rules for an extra $500.00 payment. The association’s only option to enforce the covenant will be to then take the owner to court. It’s better to levy a fine that actually makes breaking a rule unattractive. This restriction encourages rule-breaking by wealthy homeowners and litigation, and will harm communities in the exercise of their duty to enforce.

The restriction will also result in dangerous conditions in shared housing. Condominium units with aluminum wiring are practically uninsurable. If an association can only fine a unit owner $500.00, that unit owner can ignore the association’s requirement to correct aluminum wiring (which may cost several thousand dollars), force the association’s insurance premiums to double (or have no insurance at all), and put his neighbor’s lives at risk until the association files a lawsuit that may cost thousands of dollars and take years to resolve. Again, this bill encourages more litigation at the expense of the people who follow the rules.

Foreclosures
To reiterate, CLAC supports protecting owners from foreclosures that are based solely on fines. That’s not what House Bill 1137 does. In fact, it rewards owners who fail to pay assessments with massive windfalls. It reflects a misunderstanding of the foreclosure process. While the bill doesn’t change any foreclosure statutes (and changes to the foreclosure statutes would be beyond the scope of its title), it fundamentally alters how HOAs can foreclose regardless of whether the foreclosure is due to oil stains on a driveway or six years of consistent nonpayment.

When a property goes through foreclosure, whether by a lender or by an HOA, all junior lienholders are entitled to notice of the foreclosure by current law. Any junior lienholder that is not properly notified retains its lien on the property and has the right to redeem the foreclosure – that is, to pay off the parties who bid on or otherwise sought title to the property and take title themselves. If you hear stories about HOAs that foreclose on the “super lien” and take all the equity in a property, those stories are theoretically possible but are exceedingly rare. In addition, any lien foreclosure can take equity in a property. This isn’t unique to community associations and is dictated by lien priority.

The HOA lien comprises two parts: the six-month super priority lien, which is senior to the first mortgage, and then the rest of the lien, which is junior to the first mortgage. When the HOA forecloses its lien, it gives notice to that first mortgage, which will typically pay off the super priority lien to preserve the lien of the first mortgage. This means that, unless the first mortgage hasn’t been updating its records to protect its rights, the HOA lien foreclosure results in title to a property subject to the first mortgage.

Other liens, such as second mortgages, mechanics liens, and judgment liens, may then file for redemption on the property and take title by paying off the senior liens. The idea is that when a property is sold through foreclosure, equity will be made available to pay off the owner’s other creditors.

In the vast majority of HOA foreclosures, investors purchase existing liens on the property so that they may redeem and take title to the property. The HOA rarely ends up owning the property. These investors help ensure that HOAs are able to pay their bills and put a new owner in the property – one who will, hopefully, pay the assessments.

The amendments to House Bill 1137 require any unit foreclosed on to be sold at 80% of its fair market value, regardless of tax liens or mortgage liens. Let’s do the math.

Assume a unit is worth $500,000 and has a $300,000 first mortgage, and is subject to $500/month assessments. The Association cannot foreclose until the property is at least $3,000 delinquent. Let’s assume that the Association files for foreclosure immediately when it is able and the process moves quickly. At the time of sale, the homeowner will likely be a year behind (if not more), and the Association will incur maybe $4,000 in costs and attorney fees.

The bank will pay the $3,000 super lien to protect its mortgage. The Association’s bid under current law will be $7,000. An investor might bid $7,001, others might bid it up further. Junior lienholders might redeem. Under the amended House Bill 1137 foreclosure process, the owner will be entitled to any overbid funds remaining after junior lienholders have redeemed. Keep in mind, because the first mortgage paid $3,000, whoever ends up holding title to the property will hold it subject to that first mortgage.

Under HB 1137, the Association’s bid will have to be at least $400,000. The first mortgage is not a junior lienholder (because it paid the super lien) and so it won’t have access to any of that money. Likewise, tax liens will survive the HOA foreclosure. If there are no other junior lienholders who file to redeem the foreclosure, the HOA will end up paying a non-paying owner $393,000 and owning a property with a $300,000 mortgage. The money paid will come from existing assessments or reserve accounts, and force HOA Boards to become property investors and flippers. This will have tax implications and create legal and other expenses for volunteer Boards that are far beyond the typical scope of an HOA – to enforce covenants and preserve the community.

Under this scheme, knowing the HOA will have to pay it off, the first mortgage might not pay off the super lien. It’ll get paid in full by the HOA as a junior lienholder. This means that institutional investors who have no interest in taking care of a property (as was common during the recession) will have no reason to get a new owner into the unit. The people who still live in the community will suffer.

And of course, you might recall that just over a decade ago, overstated appraisals were rampant. If the Association has to bid 80% of an owner’s appraised value, and that appraisal is not accurate, the owners who pay their assessments are going to be hit even harder by the folks who don’t. This law will encourage owners in communities that are facing financial and structural challenges to walk away. If an owner can either pay a $15,000 special assessment to make structural repairs to his condominium unit, or walk away and wait for a big check to come in the mail, the choice is simple. For the HOA, the choice is not so simple: it can continue shifting expenses to the paying owners and let the abandoned unit languish (uninsured, unoccupied, unheated), or it can pay off the owner who wasn’t willing to be a part of the community.

Community association liens are entitled to the same rights as liens for taxes, mortgages, and judgments. Moreover, an owner consents to that lien – and its potential foreclosure – when purchasing the property. House Bill 1137 eliminates the rights of communities to require owners to follow the rules and pay their bills, shifts those economic externalities onto other homeowners, and will bankrupt communities that are already struggling to pay their bills.

A final point that seems to be lost in the foreclosure discussion is that Colorado community associations undertake judicial foreclosures. This means that each and every time a homeowner loses a property to an HOA foreclosure, a judge has reviewed the documents and facts and made a decision that the foreclosure is proper. Due process is provided by the existing system, which House Bill 1137 collaterally attacks by making community association liens (whether for fines or maintenance assessments) less powerful than any other lien in the state.

Financing and Insurance
By effectively eliminating foreclosure as a remedy for delinquent assessments, House Bill 1137 will result in increased accounts receivable for communities throughout the state. Higher delinquency balances and percentages mean that FHA may be unwilling to certify a condominium for FHA-backed financing. Without FHA financing, many first-time homeowners will find themselves without a lender. This is an example of the unintended consequences of a bill that might be intended to help out first-time homeowners.

The bill will also make community associations liable for up to $25,000 in damages if a unit owner proves, by a preponderance of the evidence, that the association “has violated any foreclosure laws” with respect to that unit owner. The statute of limitations for this claim is an arbitrary five years, tied to no existing statutes of limitation. The question of whether an association “has violated any foreclosure laws” seems impossible to answer; did the association violate a foreclosure law if it didn’t give notice to a junior lienholder? Perhaps, but is that the owner’s right to enforce? Association insurers may find themselves overrun with claims relating to foreclosures for years, because many owners will dispute the validity of a foreclosure even if the Association did everything by the book. Losing a home feels unfair even when the law is followed. Insurers might pay a few claims a nuisance value to settle, and then they’ll start excluding foreclosure claims from coverage altogether, or drastically increase rates in light of the claims. Yet again, an unintended – or intended – consequence of a bill that purports to eliminate foreclosures based on fines is to effectively remove the remedy altogether.

What You Can Do
Sad anecdotes create poor policy decisions. CAI remains interested in a compromise bill that will protect owners from fine-based foreclosures and increase due process within reason. The legislature must consider the very real ramifications of the laws they pass and how they will impact the hundreds of thousands of homeowners who rely on their community associations to protect their homes. Contact your legislators today to ask them to fix problems, rather than spread them throughout your community. Ask them to protect you, and to vote against House Bill 1137.

In December of 2009, I was unemployed, worried that my unemployment coverage was about to end, and interviewing with anyone who needed an associate with a few years’ experience who had no idea what she was doing. Mark Payne brought me in for an interview and after a couple of hours laughing about mutual acquaintances, he gave me a job.

I grew up in a family that often failed to comply with various restrictive covenants, and working for homeowners associations was an act of rebellion. It also became something that I, unexpectedly, and quickly, loved.

Mark showed me how to write opinions, give guidance without controlling the outcome, and adhere to my ethical obligations in the face of challenge. I learned when to be steely and when to shut my mouth. He helped me through hard times – even if he didn’t know it – and saved my bacon more than once. He showed me how to counsel and how to advocate (although he’d never grace the inside of a courtroom with me). He’s a brilliant man and the best mentor I could hope for. This firm is what it is today because of Mark, and I am grateful to him on every imaginable level.

Today, Mark is retiring. Mark, thank you for all that you have done to create a firm that is both my home and my business, and for the work you put into me that allows me to be who I am today.

I know you’ll still be around from time to time, but I will deeply miss the advice you regularly gave to me when I’d ask for your insight: “I don’t know, why don’t you figure it out?”

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.