2013

Lately I have been running into folks who have had a lot to say about how boards of HOAs are enforcing use restrictions in the declarations for their communities (commonly referred to as "covenants") and the rules and regulations which I will refer to as the "rules."  While there are always two sides to every story, I thought it would be useful to to address some basic concepts which every board should be aware of when dealing with enforcement issues.   So here we go:

1.  Boards have a fiduciary duty to enforce the use restrictions in the declaration for their HOAs and the rules.  Owners have a legal obligation to comply with the use restrictions and rules.

2.  While Boards have the duty to enforce use restrictions and the rules, boards also have the authority under Colorado law to examine the unique circumstances behind particular violations and to exercise their reasonable business judgment on a case by case basis to determine whether to enforce or how far they should go with enforcement.    

3.  As a general rule, board members are also homeowners in their associations.  That means the board members also have a legal obligation to comply with the use restrictions and rules.   Compliance for board members is not optional!  In fact, if board members are not in compliance, how can they expect to require or enforce compliance from other owners?  Also, board members should be careful not to inappropriately give preferential treatment to their neighbors, family or friends. 

4.  Boards do not have the authority to levy a fine against an owner for a violation unless they first give that individual notice of the alleged violation and an opportunity for hearing to determine whether the violation occurred. Continue Reading Basic Enforcement Concepts for HOA Boards

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.Continue Reading Move That Car! Final Proposed Towing Regulations Clarify HOA Towing Authority

 With the influx of new foreclosures the past few years, you may have heard of homes in your community that are being sold through a ‘short sale’. While short sales are fairly common, few people understand what they are or how they should be handled by an association.  

 A short sale occurs when a lender agrees to accept less than is owed on a mortgage/Deed of Trust to permit an owner to sell their property. For example, an individual owning a home with a market value of $200,000 but with a $225,000 mortgage would not ordinarily be able to sell their home since a necessary condition of sale is to payoff the outstanding mortgage and any liens. In this example, the homeowner would need to come to closing with $25,000 in cash to allow the sale to close. Since most individuals are financially unable to sell their home under these circumstances, a solution is to convince a lender to accept a payment of $200,000 on their loan to permit the sale to go through. Continue Reading Understanding Short Sales in Your Community

It’s no secret that Colorado’s housing market continues to improve and according to the Denver Post, some buyers have even been forced into bidding wars over the low inventory in certain areas.   While the increase in home sales is great news for the local economy, this is also an important reminder to associations to…

Earlier this week, I was asked by the Alternative Dispute Resolution Section of the Colorado Bar Association to participate in a luncheon conversation about the use of mediation in HOA disputes.  We talked about the types of disputes which can occur in HOAs and the importance of mediators understanding the role of the governing documents and Colorado law in the HOA context.  However, I found the experiences shared by mediators…

Jase Robertson, a star of the hit show Duck Dynasty, got a bit sideways with his HOA for burning leaves and keeping chickens in his yard. As you might expect, Jase was sent covenant violation letters and seems to have been fined for these violations. 

In an attempt to “flush these rules down the commode” and get "creative,” Jace and members of his family (armed with a casserole) attended a meeting of their HOA Board to discuss the issue. When his time came to speak, Jase stated that: “We are endowed by our creator with certain unalienable rights – life, liberty and the pursuit of happiness. Chickens make me happy. They get insects. They fertilize your yard and if anything goes wrong, you can put them in a pot!” 

 

The Board President calmly and professionally informed Jase that when he bought his home he signed a document stating that they are not allowed to burn leaves in their yard or keep chickens. Jase, understanding the governing documents of his association covered these issues, stated: “They got me. I signed the contract. I didn’t know that was in there.”

 

//www.youtube.com/embed/uMTTpi5KmKkContinue Reading Does a Casserole Cure a Covenant Violation?

I think I’m pretty spoiled.  I only have to deal with bad weather when I choose to.  My garage at home is attached, and my garage at work occupies the lower levels of the building.  Sometimes I forget a jacket on winter days and don’t realize it’s a problem until I have to go outside.…

 Does your Board record its meetings, either with audio recordings or video recordings? Do you allow members who are present to record meetings? Do you know? Do you care?

With all the discussion and action in recent years focused on transparency of association operations, it might seem like recording meetings, or allowing them to be recorded is consistent with notions of transparency. However, that is often not the case. When your association has not thought about this topic, too often the result, when the Board discovers that a member is recording the meetings, is uncertainty, and then the call to the association’s lawyer’s office to find out what is allowed, not allowed, and what can be doneContinue Reading Recording Meetings – Should We or Should We Not?

If you remember during the mortgage meltdown a few years ago, Fannie Mae and Freddie Mac became embroiled in scandal and bad press.  It now looks like there is some movement in the United States Congress to deal with Fannie and Freddie.  CAI National has just reported that eight United States Senators have introduced a bill that would wind down the operations of these quasi-governmental entities.  The big question is whether or when the bill will get traction.  Here’s what CAI has reported: Continue Reading Bill Introduced in United States Senate to Replace Fannie and Freddie

Early last week, I participated as a volunteer for the Rocky Mountain Chapter of Community Associations Institute on the HOA Line 9 which is hosted by 9 News with the assistance of the Chapter.  This oustanding program permits folks who live in and serve on the boards of HOAs in Colorado, to call in with questions about their associations.  While we received many questions on the new HOA debt collection law which will go into effect on January 1st, I also noticed a trend from the calls I received relating to transparency. 

Since I understand that many HOAs in Colorado are self-managed and the boards of directors which govern them may not necessarily be well-versed in the provisions of the Colorado Common Interest Ownership Act ("CCIOA") relating to open meetings, I thought now was a great time to provide these folks with basic information on the laws which appropriately promote transparency.  Please feel free to share this information with residents and board members of HOAs in Colorado.     

Here is what you need to know:Continue Reading With Few Exceptions – Open HOA Board Meetings Are Not Optional