In Shakespeare’s Henry VI, Dick the Butcher suggests killing the lawyers in the context of a revolution. “Killing the lawyers” has been interpreted to either contemplate a nirvana in which annoying attorneys with their endless red tape are no longer around to stop normal people from living happy lives, or to lay the groundwork to prevent the rule of law from stopping a coup before it is too late.

I tend to interpret this line as the latter. I truly believe that attorneys – and especially, attorneys in our field of practice – are necessary to ensure that the law is upheld, respected, and understood by owners, Boards, and managers alike. We are often a “necessary evil.”

Viewing attorneys as something evil, many communities seek to avoid the need for legal counsel. After all, attorneys are expensive, and they often tell Boards and homeowners to stop a particular course of action contrary to the desires of the counseled party. It is incumbent upon Boards and their professional advisers to recognize circumstances where an attorney is necessary or appropriate. When those circumstances occur – CALL THE LAWYER FIRST!

If you know you are going to have a difficult meeting, whether it is a hotly contested election, a controversial special assessment, or a difficult homeowner who won’t take “no” for an answer, call the association’s attorney to check his or her availability before scheduling the meeting if at all possible. Many community association attorneys attend multiple evening meetings every week – particularly during annual meeting, budgeting, and election season – and if you make sure your attorney is available before you schedule a meeting, you will be better able to address the hurdles before you at that meeting. We recognize you can’t always plan for a difficult meeting – sometimes, the difficulty rears its head the day before the meeting occurs – but get your attorney involved early to protect the Association and the rule of law, and make your life easier.

Is your association increasing, or even decreasing, its annual assessment fees for 2020? 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.

In addition to payment plans that may be affected by the increase of assessment fees, there are also notification requirements and deadlines the association must comply with for certain owners who have filed for bankruptcy.  Advising the association’s attorney of any change will allow the attorney to take the proper measures to ensure that the association retains the right to collect the new assessment fee.

If you haven’t already notified your attorney that your assessment fees have changed, or will change, for the New Year, pick up the phone or send an email to your attorney – I’m sure he or she would love to hear from you!

For those of us who work in the HOA industry, the one constant theme we have heard over the last couple of years is that many people have become just plain mean.  While this nastiness is certainly not across the board and folks in the vast majority of HOAs we work with strive to do the right thing and treat each other with respect, those HOAs that are dysfunctional seem to have an escalation in the lack of civility in their communities.  We all have our theories on on why this is the case, but we will let you contemplate that on your own.

It’s probably safe to say that we have all been taught that we need to set an example with our own behavior.  As a result, we need to be willing to engage in a self-evaluation to determine if we are contributing to the dysfunction and lack of civility in our own communities.   In this blog entry, we will provide a self-evaluation for folks serving on the board of directors of their HOA.  Next week, we will provide a self-evaluation for homeowners. Finally, we will conclude this series on civility with tips for dealing with difficult people in HOAs.

Self-Evaluation for Directors:

  1.  Interaction with fellow directors.  How do you treat your fellow directors?  Do you listen to their perspective?  Do you point fingers at them?  Do you cut them off while they are speaking?  Do you yell or scream at them?  Are you disrespectful to them?  Do you ignore them?  Do you speak to others while another director has the floor?
  2. Interaction with management.  How do you treat your manager and management company?  Do you listen to their reports?  Do you ask their opinion on issues?  Do you yell or scream at them?  Do you treat them with disrespect?  Do you make assumptions about their performance, without first gathering credible information?  Do you have a conversation with your management to set reasonable and obtainable expectations?  How do you handle legitimate conflict with your management?
  3.  Interaction with homeowners.  Do you make stereotypical assumptions about some of the homeowners in your community?  Do you treat all homeowners equally?  Do you treat them respectfully?  Do you yell or scream at them during meetings?  Do you inappropriately cut them off?  Do you ignore them when they are speaking?  Do you make disparaging comments about them?  How do you handle chronic complainers in your community?
  4. Interaction with your ego.  How does your ego impact your conduct in the community?  Are you a know it all?  Are you always thinking about what you are going to say, rather than listening to the individual who has the floor?  Are you belligerent or hostile to others? Is your ego getting in the way of admitting when you are wrong?  Are you disrespectful to others who don’t share you opinion?

Let’s face it, nobody is perfect and we all have moments that we are not proud of.  However, by honestly and privately engaging in this self-evaluation, you can answer for yourself whether as a director you are conducting yourself appropriately in your community.  If you are not acting with civility and basic decency as a director, how are you going to change your behavior?  If you are serving with a director who routinely and destructively engages in incivility, are you willing to professionally and constructively call out their behavior?

Remember, as a leader in your community, the example you set can make a huge difference!



On Wednesday, the Federal Housing Administration issued new guidelines for condominium project approval. Before the recession, condominium projects could obtain FHA certification, in whole or in part, and that certification did not expire. In 2011, the guidelines were changed to require re-certification every two years, and limited certification to the entire project. Gone were the days of “spot approval.” At the time, it appeared that HUD was no longer interested in backing condominium loans.

The new guidelines bring back spot approval, and now projects only need obtain re-certification every three years. Re-certification has been simplified. In addition, owner occupancy can be as low as 35%. These changes can make it easier for a buyer to obtain an FHA loan, potentially expanding the pool of available buyers for condominiums throughout the country.

The new guidelines go into effect on October 15.

A year ago, Colorado law changed the requirements for budget ratification for HOAs which were created before July 1, 1992.  Whether your HOA was created before, on or after July 1, 1992, join the Aspen Pitkin County Housing Authority (APCHA) to learn what you need to know about the budget ratification process.  In addition, since summertime inevitably brings headaches relative to covenant and rule violations, we will also discuss what you can do to encourage compliance with the governing documents of your HOA, the obligation of HOA boards to comply with and enforce the governing documents of their communities and tools available for enforcement.

If you are a member of the board of directors of your HOA, manage HOAs or live in an HOA, this class is for you!  This class which is sponsored by APCHA, is free of charge and will be held on Wednesday, July 24th from 11:30 am to 1:00 pm in the City Council Chambers at City Hall which is located at 130 South Galena Street in Aspen.  Molly Foley-Healy will be presenting this class for APCHA. To RSVP for this class, please call APCHA at 970-920-5050.

Mediation is a type of alternative dispute resolution with the goal of finding a solution and reaching an agreement that is acceptable to all parties involved. In some counties, mediation is mandatory and if a case becomes contested, the parties are ordered to attend mediation prior to scheduling a trial. In some instances, however, even if not court ordered, it may be beneficial for the parties to attend mediation depending on the facts of the case.

During mediation, the parties will meet with a neutral third party mediator who may sometimes be an attorney or even a judge, but in any case, the mediator is a trained professional whose job is to look at the facts of each case objectively and not to take sides or play favorites.  In mediation, unlike arbitration, a mediator is there to facilitate a resolution of the case but does not have authority to make any rulings or to bind the parties to a particular outcome, as would an arbitrator.  The mediator can also not give legal advice to the parties, but can use common sense reasoning to assist in decision making.

One advantage of mediation is that the parties can come to a resolution on their own terms and essentially control the outcome of the dispute.  At trial, the judge or jury decides the case where the outcome can be less favorable than the parties may have agreed to prior to trial.  Consequently, depending on the facts of the case, the parties may find it more beneficial to resolve the issues on their own terms than face the uncertainty of trial.

An important thing to remember is that mediation is confidential and anything said in mediation, either to the mediator or to the opposing party, is held strictly confidential and cannot be used against that party. The mediator is not allowed to be called as a witness at trial or any other hearing, nor can a party testify to anything that was said during the mediation. This is helpful as it permits each party to speak freely and allows full disclosure of all of the issues which may have otherwise gone unknown or unsaid. Mediation also allows the parties to express his or her feelings about the case in an informal setting. The parties are not, however, required to enter into an agreement and if one cannot be reached, the mediation may be terminated and the case will continue through the court process.

Although mediation may not be a viable option in every case, mediation can be an invaluable tool in assisting parties to work together to reach common goals, which can ultimately help keep relationships intact.

For those of you who had been following House Bill 19-1212 during the 2019 legislative session, which would have reauthorized the community association manager licensure program and related requirements in Colorado, you probably already know that Governor Polis vetoed the bill on May 31st.  That means that as of today, the licensure of community association managers in Colorado is over.

Given the Governor’s alarming lack of knowledge on the positive impact of manager licensure for consumers living in HOAs in Colorado, the elevation of the profession of community association management and the evolution of homeowner protections placed in the Colorado Common Interest Ownership Act over the past 10 to 15 years, it is not an overstatement to say this veto is senseless and the letter which Governor Polis authored explaining his veto is a testament to his lack of fundamental understanding of the legislative and regulatory  evolution of consumer protections for folks living in HOAs in Colorado.

As an attorney who specializes in community association law, I can tell you that during the period of time that licensed managers were required in Colorado to have a basic understanding of Colorado law pertaining to HOAs and to demonstrate the core competencies of community association management, I saw a significant decrease in basic management mistakes and oversights.  For instance, I rarely saw managers fining owners for covenant and rules violations without notice and an opportunity for a hearing, I saw managers understand when notices for membership meetings must be sent out and what those notices must contain, I saw an understanding and implementation of the open meetings provisions of CCIOA and the use of closed executive sessions and I also saw managers across the state appropriately applying the budget ratification provisions of CCIOA and their governing documents.

The lack of fundamental understanding which Governor Polis displayed in his letter explaining his veto, will set back consumer protections in Colorado well into the future.  The likelihood that manager licensure, which the Division of Real Estate in their sunset report recommended continuing, will be reauthorized in Colorado is slim to none.  Instead of doing his homework on all of provisions in CCIOA which promote and guarantee transparency in HOAs, Governor Polis used this tired excuse to set back the entire industry and important consumer protections.  In my humble opinion, the veto of HB 19-1212 was a destructive and uniformed action.

After much debate between interested parties, HB 1212 has passed and is on its way to the Governor in a form that is substantially different than existed on Monday. Rather than recreating Colorado’s manager licensure program, HB 1212 revives prior licensure legislation until September 1, 2020, and creates a stakeholder process to gather information from owners and managers and make recommendations to the director regarding community management, such as the complaint process and credentialing. Be sure to check this site for updates as we await the Governor’s signature, and analyze the impact of the new process on communities and community association professionals.

After much debate and discussion, the amended version of House Bill 19-1212 has been laid over until tomorrow, May 1, when it will be sent back to the Senate Finance Committee for a vote. After Finance, the bill will go to Appropriations, and then to second and third readings on the Senate floor. If the bill is amended during this process, it will go back to the House for concurrence.
Be sure to check for all the latest happenings as this legislative season races to a finish!

With one week left in the Colorado Legislative Session, an amended version of House Bill 19-1212 (“HB 1212”) has just cleared the Colorado House of Representatives on a 44 to 22 vote, with 1 excused, and is moving to the Senate.  While one week doesn’t seem like a lot of time to get the bill through the Senate, with the Colorado General Assembly working crazy hours until adjournment for the year, passage through the Senate is definitely doable.  Senator Rhonda Fields, the Assistant Majority Leader in the Senate, and Senator Nancy Todd are the Prime Sponsors of HB 1212 in the Senate.  Both of these legislators are capable leaders with the ability to get HB 1212 across the finish line before the 2019 legislative session adjourns.

Stay tuned to this blog for updates on HB 1212 as it continues to proceed through the legislative process!