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.


So what does this mean for an association when a case proceeds to trial?  If the association brought the lawsuit against a homeowner for delinquent assessments, some of the facts the association will need to prove is that the association is entitled to collect assessments against the delinquent owner, the delinquent owner is obligated to pay the assessments, the association followed its governing documents and collection procedures in its collection attempts, and that the owner does, in fact, owe the assessments. 


To prove this, the association will usually present evidence of its governing documents, including its declaration, bylaws, and collection policy, to show the judge or jury that the association is entitled to collect assessments and that the owner is obligated to pay the assessments.  The association should also present evidence of any collection notices that were sent to the delinquent owner and the account balance owed by the delinquent owner, using an account ledger or other account statement.   Someone from the association or management company who has personal knowledge of the account should testify about the evidence and these facts. 


To facilitate the litigation process, an association should maintain accurate records and keep up-to-date policies and procedures that comply with current laws.  This can help the association effectively meet its burden of proof, and increase the likelihood that the association will be able to collect from a delinquent owner.