Short-Term Rentals (“STRs”), which can encompass everything from nightly rentals to thirty day rentals to six month rentals, have become a hot button issue in common interest communities since the inception of websites such as airbnb, VRBO and HomeAway.  The market for STRs in Colorado increased exponentially with the legalization of recreational marijuana.  The dramatic increase in STRs has compelled many common interest communities to consider ways to restrict, or at least regulate, leasing in their communities.

When a common interest community wants to restrict leasing to eliminate or control STRs, the first question is whether this can be done by the Board through the adoption of a rule or policy, or whether it requires an amendment to the covenants upon approval of the required percentage of the owners.  The prevailing view is that leasing restrictions may only be imposed by an amendment to the recorded covenants, and not by the adoption of a rule.

The Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101 et seq. (“CCIOA”) contains several provisions regarding the use of property within common interest communities.  C.R.S. § 38-33.3-205(1)(l) requires that restrictions on the use, occupancy, and alienation of units be contained in the recorded declaration.  C.R.S. § 38-33.3-217(4.5) requires that no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of at least sixty-seven percent (67%) of owners, or any larger percentage specified in the declaration.  Similarly, the Restatement of the Law on Property/Servitudes provides that, absent specific authorization in the covenants, an HOA does not have the power to adopt rules that restrict the use or occupancy of individually owned units.

Continue Reading Short Term Rentals

For those of you who know me, you know that I’m a political junkie.  But even for me, this political season has seemed like it has already lasted for an eternity and I don’t remember politics ever being quite this nasty.  With the Republican and Democratic political conventions almost behind us, I can guarantee that the race for POTUS and all of the down ticket races will pick up steam and folks living in HOAs will want to place political signs for their favorite candidates and ballot issues in their yards and windows of their homes.

In anticipation of "political sign season," here is what residents, boards and managers need to know about placing political signs in HOAs in Colorado: 

Continue Reading Political Signs in HOAs: What Residents, Boards and Managers Need to Know

I read this article in the Denver Post about a pet owner not picking up the poop of his Teacup Chihuahua in his HOA.  This association has a rule requiring all owners to pick up after their pets and is utilizing doggie DNA to figure out which dog in the community left behind the droppings.

When enforcing this rule, does it matter whether your dog is a pitiful or prolific pooper?  No!  Poop is poop and HOAs should be consistent in enforcing this rule – regardless of the size of the dog or their droppings.   

However, if your HOA is utilizing doggie DNA, please remember that under Colorado law your association must give the owner of the dog notice and an opportunity for a hearing prior to levying a fine.  Here’s a link to important information your association needs to know when enforcing covenants and rules.

Funny story.  A condominium association I represent is located in such a way that I could see their amenities – a small swimming pool and tennis courts – from my office window.  One summer, the association was involved in some pretty contentious litigation over a serious, ongoing covenant violation.  We were conducting depositions in my conference room and, during a break, the manager and I stepped into my office.  I happened to glance out the window and noticed a dog running around on the pool deck.  I pointed it out to the manager, he made a phone call, and we went back into the deposition.  Later that day, the manager sent me this photo, which the dog’s owner had sent him by way of apology.

 

Continue Reading Rules are Rules

 In a recent decision [Houston v. Wilson Mesa Ranch Homeowners Association, Inc., 2015 WL 4760331 (D. Colo. August 13, 2015], the Colorado Court of Appeals held that an association’s covenants stating that homes could not be occupied or used for any commercial or business purpose did not prohibit a homeowner from renting out his property for short-term vacation rentals.

A homeowner in the community advertised and rented his home for rent through the VRBO website. In response to the homeowner’s actions, the association passed an amendment to its ‘administrative procedures’ prohibiting its members from renting out their properties for a period of less than thirty days without prior board approval and establishing a $500 fine for violations. 

Continue Reading Short Terms Rentals may not be Commercial Use of Property

Oh yes we can.

It is not unusual for us to encounter communities with strict restrictive covenants that have not been enforced in a strict manner.  Much of the time, this is due to apathy or ignorance.  In other circumstances, Board turnover results in more or less enforcement.  Some Boards hate to enforce against their neighbors, and offer so many variances the covenants might as well not even exist.  Some Boards will interpret documents in a manner different than other, future Boards, but when the documents remain the same, we have to figure out what to do to follow those documents in light of the community’s history.

A recent case in California provides a bit of guidance for those of us facing the historical enforcement challenge.  In The Villas in Whispering Palms v. Tempkin<!–, No. D065232 (Cal. Ct. App. May 18, 2015), No. D065232 (Cal. Ct. App. May 18, 2015) the California Court of Appeals held that an association board that had historically offered numerous variances to a one-dog rule was not required to offer variances.  The homeowner claimed the Board was unreasonable because it had provided variances and allowed multiple dogs in the past.  The Court ruled that the Association’s prior variances did not impact its ability to deny the requested variance.

Continue Reading You Can’t Enforce That!!!

It’s that time of year again, when the weather is changing and people are spending more time….naked in their doorways?  No, this is not an early April Fool’s joke.  According the neighbors of the Cardinal Glen’s HOA in North Carolina, this is a problem they’ve had to deal with without any help from the police.  Because their neighbor remains within his home on private property, he is not legally indecently exposing himself, and criminal prosecution is not an option.

Continue Reading The Bare Facts about Covenant Enforcement

You probably read plenty of articles on our blog in which we remind associations to ensure they have adopted and are enforcing their responsible governance policies and rules and regulations.  While owners have a legal obligation to comply with the covenants and rules, this may not extend to rules that are in violation of or contrary to local, state or federal law.

Continue Reading Hierarchy of Rules

We are fifteen days from the 2014 midterm elections, and candidates are undoubtedly working hard to get those elusive swing voters to the polls. Yard signs are one tool that candidates use to build name recognition and sway votes. A multitude of signs for federal and state political offices, as well as several ballot initiatives, are jostling for real estate this year. In years past, community associations could rely on restrictive covenants to prohibit political signs from disrupting the neighborhood aesthetic. But, since 2005, Colorado law has outlawed any outright prohibition of political signs in covenant-controlled communities. Colorado statutes provide guidance on what political signs associations can regulate, where signs can be placed, and when political sign regulations can apply.

Continue Reading I Can’t See the Forest for the Yard Signs

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!