A judge in Michigan recently sued her homeowner’s association seeking a declaratory judgment (a judgment from a court that determines the rights of parties without ordering anything be done or awarding damages) that the more than six foot tall shed she installed in her yard does not violate the association’s covenants.   The homeowner’s association claims the shed violates a deed restriction in the covenants and the association has threatened to sue the judge if she doesn’t remove or downsize it.   

Continue Reading I object (to your shed), your Honor!

For a court to have authority to make legal decisions and enter a judgment against someone, the court must have both personal and subject matter jurisdiction over that person.  Subject matter jurisdiction involves the court’s ability or power to hear certain types of cases, whereas personal jurisdiction is the court’s power over a particular party.  The court obtains personal jurisdiction over a defendant when the plaintiff obtains proper service of process of the summons and other related documents, including the complaint.  Service of process is the way by which a party receives notice of the initiation of the litigation and is thereby afforded an opportunity to respond.

Continue Reading Service of Process – What is it?

Have you signed up for our free manager classes on Colorado law yet?

As previously blogged by Lindsay Smith, Winzenburg, Leff, Purvis & Payne, LLP is offering free lunchtime teleconference classes for community association managers designed to help prepare managers to take the Colorado law portion of the licensing examination.  The next class is scheduled for July 9, 2014 at 12:00p.m. and the topic is “Everything you need to know about Board of Directors Meetings.” 

The class will be taught by Molly Foley-Healy, a partner at Winzenburg, Leff, Purvis & Payne.  Molly actively teaches classes to managers and board members on topics ranging from legislative updates to complying with CCIOA to effective governance. Molly is also the Chair of CAI’s Colorado Legislative Action Committee and is the author of The Capitol Chronicles column in the Common Interests magazine.

Don’t miss out on this great opportunity to get ahead of the curve in preparing for the Colorado law portion of the licensure exam before the new law takes effect on July 1, 2015! 

 

Should you wish to participate in these teleconferences, please contact Allison at agrout@wlpplaw.com.

 Sometimes during a collection of an account, we become aware that the homeowner is in the military.  When this happens, there are certain procedures and precautions we must take before proceeding with collections.  This is due to the Servicemembers Civil Relief Act, which affords a number of significant protections to servicemen and servicewomen who are on active duty.

Continue Reading Servicemembers Civil Relief Act

By now, your association should have a new collection policy in place that complies with the new HOA collection law that went into effect on January 1, 2014. When adopting a new policy, the association should not only ensure its compliance with the new law, it should also make sure it is consistent with its other governing documents. As I discussed in a previous blog, it is important that the association’s governing documents are consistent with one another and most importantly, with the Declaration. While the policy can add or elaborate specifics about the collection procedures, it cannot contradict the terms of the Declaration or the new law.  Should you have any questions regarding your collection policy, please feel free to contact us.

When we hear the term “burden of proof”, many of us think of the television crime shows we all watch such as Law and Order or CSI, and how we always hear that the prosecution has to prove the defendant’s guilt “beyond a reasonable doubt”.  This “reasonable doubt” standard is the burden of proof in criminal cases.  In general, the burden of proof, or burden of persuasion, is the duty placed upon a party to prove or disprove a disputed fact.  Depending on the case and the arguments, either party can bear this burden. 

In civil cases, however, the burden of proof is a lower standard and only requires that the party who bears the burden prove or disprove a disputed fact by a preponderance of the evidence or by clear and convincing evidence.  Colorado courts define “preponderance of the evidence” as proving that it is more probably true than not, and have defined “clear and convincing evidence”  as proving that it is highly probable and there exists no serious or substantial doubt. It is up to the judge or jury hearing the case to decide whether a party has met its burden.

 

Continue Reading Burden of Proof

Has your association increased, or even decreased, its annual assessment fees for 2014? If so, it is important that the association follow its governing documents when providing notice of the change to all owners.   In addition to providing owners with proper notice of any change, the association should also notify its attorney. This will help to ensure that any accounts and/or payment plans that are with the attorney for collection are properly noted, and any increase is accurately accounted for and collected.  

Continue Reading 2014 Annual Assessments

Homeowners often claim that they did not receive notice of their delinquency from the Association. Sometimes this assertion comes up after the Association files suit against the homeowner.   Fortunately, the “Mailbox Rule” can allow the Association to overcome this allegation.

Continue Reading The Mailbox Rule

I recently read an article about a homeowner in Texas who received a violation notice from her homeowners association as a result of chalk drawings left on her driveway by her son – something the owner and neighbors do not feel the Association’s governing rules specifically address.  The article goes on to state that the owner and her neighbors organized an event where they handed out bundles of chalk to kids from the neighborhood who gathered to decorate their sidewalks and driveways. While this may be a knee-jerk reaction for most folks, intentionally violating the rules in an attempt to  “send their neighborhood association a message” may only worsen the situation by subjecting more owners to similar violation notices and potential fines.  Though the Association may not have a rule specifically addressing chalk use, most Association’s have rules and regulations that deal with the maintenance and upkeep of a property and require owners to keep their property in a clean, safe, and attractive manner – something “chalk drawing” could surely fall under. 

Continue Reading Chalk Another One Up to Bad Communication