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.
We hear the term “Due Diligence” used in many different contexts, but what does it mean? According to Merriam Webster, it is the care that a reasonable person exercises to avoid harm to other persons or their property. A common transaction where this term is used is in the purchasing of a home. While many of us think of due diligence as obtaining inspections, appraisals and checking out the neighborhood and schools, one should also research if the property is located within a covenant controlled community.
All Colorado community associations are required by the Colorado Common Interest Ownership Act ("CCIOA") to adopt responsible governance policies governing issues like collections, meeting procedure, and records inspection. CCIOA does not provide a lot of guidance for the terms of these policies, but the policy regarding enforcement of covenants and rules and the imposition of fines, must provide the following:
- Notice and hearing procedures;
- A schedule of fines;
- A fair and impartial fact-finding process; and
- An impartial decisionmaker.
These minimal guidelines do not address a question we frequently see from our clients: "Do I have to tell my neighbor I ratted him out?"
Many homeowners prefer the option of anonymity when making a covenant violation complaint. The reasons for the preference are obvious – it allows the complainant some measure of protection from an irate neighbor, and can encourage free and open violation reports.
Photo courtesy of http://theduty.tumblr.com.
We get questions from time to time from associations inquiring about homeowners who have installed improvements around their home, sometimes with association approval, but oftentimes, without. Upon further examination, the association discovers that the improvements appear to encroach on the association’s property – open space, parks, etc.
The inevitable question from the association is “what can we do about it?” “Can we just remove it at the owner’s expense?” “Do we have to leave it?” “It looks okay, and we don’t mind it being there, but who is required to maintain it?” “What do we do now?”
Ahhh, spring, when a young lawyer’s fancy turns to thoughts of…covenant enforcement.
I love covenant enforcement cases. In most situations, the owner who violated the documents has no defense and it’s up to the association to make sure the owner complies with the documents that govern his property. Sometimes it can be a headache, but it’s the Association’s legal duty to enforce these documents.
Not in your backyard? Enforce your covenants!
Some thoughts from your lawyer’s perspective to help ensure a successful covenant enforcement action:
Over the past few weeks, I have been posting a series of blog entries outlining items that boards and managers of homeowners’ associations (“HOAs”) should add to their 2012 To Do List. One item that can be easily overlooked is the review and refinement of rules and regulations (“rules”).
Since boards have the fiduciary duty to enforce rules, it’s essential for boards to undertake a periodic review of their association’s rules. While it’s wise to work with legal counsel when reviewing and revising rules, here are a few areas of inquiry:
The holiday season is fast approaching which means I’m gearing up to enjoy my favorite spectator sport of the year. No – I’m not talking about watching football. I’m talking about watching the men in my HOA compete with each other over installing the “best” holiday display. From my point of view, what the “best” display consists of is certainly open to debate. However, I’m convinced the guys think “more is best.”
Once the initial installation of their displays is complete, you will see some of the guys talking with each other comparing their artistic expressions. Appropriate adjustments are then made. However, some of them are a bit more subtle. You will see vehicles slowly moving past displays as they desperately try to count strings of lights and assorted decorations without being obvious. The next thing you know, someone will be teetering on a ladder in howling winds installing yet another string of lights. During this time, I make sure to let my husband know that he is being shown up by his neighbors. I then quietly wait to see what will happen next.
EcoSalon republished a great story written by Lindsey Anna Toleda entitled Seeing Red (When the Homeowners Association Wants To See White). It’s a well written piece about the importance that heritage, images from their travels and color plays in lives of Lindsey Toleda and her husband.
Lindsey and her spouse live in a homeowners’ association (“HOA”) and really wanted a red front door. She wrote:
A receivership can be a useful tool for associations to collect delinquent assessments and fees against homeowners whose property is tenant-occupied or vacant. Assuming there are paying tenants, the process is typically smooth and the association recovers its delinquents assessments together with the costs of the receivership. In some cases, however, the tenants refuse to pay their rent or pay reduced rent to their landlords if they are Section 8 qualified. The former situation allows the receiver to evict them for non-payment, but the later presents a problem.
An article in the SunSentinel reported that the Willoughby Estates Homeowners Association in Lake Worth, Florida was presented with such a dilemna when it filed a receivership lawsuit and was faced with collecting rental income from a Section 8 tenant. The tenant was only paying $275.00 of the $1,784.00 in rent owed each month with the remainder subsidized by the county Housing Authority. Not a bad deal if you ask me! The association, however, had other plans and demanded that the Housing Authority forward the rent that it sent to the landlord each month. Interestingly, the Court agreed and required the Housing Authority to forward all future payments to the association until it was paid in full.
As I was perusing HOA headlines, I noticed an editorial written by the Desert Sun Editorial Board entitled Thumbs Down: Homeowners associations should allow solar panels on condominiums. The editorial slapped the Palm Valley Homeowners Association for not permitting a couple to install solar panels on the roof of their condominium. The roof is a common element and the Association is concerned about damage. While the couple has said they would accept full legal responsibility for damage, the Association doesn’t seem inclined to budge on the issue.
On July 28th, I blogged on a Breckenridge condominium association that had installed a solar thermal supplemental hot water system on the rooftop of the condo building. What is important here is the association installed the system on the roof it is responsible for maintaining. In the Desert Sun story, the homeowners are requesting to install panels on a roof which the association is responsible for maintaining, repairing and replacing.