From Capitol Hill/Legislation

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Earlier in this legislative session, we wrote about proposed new legislation, Colorado H.B. 1278, that was going to create an HOA Ombudsman as a State of Colorado employee. The earlier version of the bill required the Ombudsman to be an advocate for the rights of unit owners in their communities and offer to mediate disputes, but would not purport to give legal advice to any party; act as a clearing house for information concerning the rights and duties of unit owners, declarants, and unit owners’ associations under CCIOA; report suspected violations of the new law or rules of the Division of Real Estate; and report other suspected violations of law to the appropriate authorities.          

The proposed law went through many iterations, but was finally passed on third reading by both the Senate and House last week, and was sent to the Governor’s desk for signing. Assuming that the bill is not vetoed, it will become effective on January 1, 2011. On its journey, the bill was winnowed down to remove the advocacy provisions, and instead of creating an Ombudsman to advocate for everybody, now creates within the Division of Real Estate an HOA Information and Resource Center, the head of which will be the HOA Information Officer.Continue Reading An Ombudsman For Everyone? Apparently Not

While this may not seem such a big deal to many of our readers, – read: nonlawyers -, HOA lawyers have a very difficult practice. Not only is it important to be well versed in the major areas of the practice, such as Real Estate, Colorado Common Interest Ownership Act, Corporation and Non-Profit Corporate Acts, Contracts, Litigation, especially Collections, but also knowledgeable in other areas to seek expert advice to make sure the client receives the best and most accurate information. Examples include laws regarding fair housing, employment, bankruptcy, taxes and other esoteric areas.

With all the new laws being passed directly involving HOA’s (see Mark Payne’s most recent posting) and those affecting HOAs indirectly, it is important to be aware of situations that may have impact how we attorneys offer advice.

Last year Congress passed Public Law 111-22, Title VII –Protecting Tenants at Foreclosure Act, effective May 20, 2009. The law was passed to protect bona fide tenants against immediate evictions by the successor in interest of “any foreclosure on a federally-related mortgage or loan or on any dwelling or residential real property after the date of the enactment [May 20, 2009]…” The law appears to focus on public trustee foreclosures on mortgages covered under federal law. But, because of the inclusion of “…or on any dwelling or residential property after the date of enactment…,” I would interpret the intent of “or” to include all foreclosures on dwellings and residential real property with or without it being a “federally-related mortgage,” – including HOA lien foreclosures as well.

 Continue Reading Protecting Tenants under Foreclosures

Like the changing of seasons, our legislature has returned, and with it, numerous ideas on how our lives can be better regulated. Over the last several years, we have had several legislators who take a particular interest in the operations of homeowners associations. They have an interest in protecting what, in their minds, are under-represented homeowners.

Along those lines, this year Representatives Ryden and M. Carroll have introduced HB10-1278, which, if passed, will create an HOA ombudsman in the Colorado Division of Real Estate. The HOA ombudsman would be appointed by the Executive Director of the Colorado Department of Regulatory Agencies. The ombudsman would be required to have at least five years of experience working with issues arising under the Colorado Common Interest Ownership Act (“CCIOA”), or in the operation or management of associations as either an attorney, accountant, a member of an executive board or any combination thereof.Continue Reading The Legislature In Session – An Ombudsman for Everyone

The 2009 legislative session began with relatively few bills affecting Colorado common interest communities. But the last few weeks of the session more than made up for the slow start. New laws concerning community association governance do the following: (i) mandate that association boards have access to extensive, specific information to assist with their decision-making, (ii) establish qualifications for individuals serving as committee chairs, and (iii) require policies concerning reserve programs. Other laws enacted but not discussed in this article include restrictions on affordable housing units, modifications to foreclosure time frames for some borrowers, and changes to provisions of the Colorado Common Interest Ownership Act applicable to small, exempt communities. The table below gives a summary of the new laws affecting association governance, the action required by associations, and the effective dates of the laws.Continue Reading New Laws Affect Association Governance

For those of you who have an interest in the evolution and development of the Uniform Common Interest Ownership Act, the American Bar Association House of Delegates recently adopted the 2008 Uniform Common Interest Ownership Act as proposed by the Uniform Law Commission. This new act is an attempt to integrate, address and resolve a number of issues that have been raised in the formation, operation and management of common interest communities in the last thirty years. But, be mindful that this is only a recommended uniform act – it is not the law in Colorado (and may never be), nor any other state at this time. However, it does provide some guidance and insight into the rationale behind various provisions that we are all familiar with in the Colorado Common Interest Ownership Act ("CCIOA").Continue Reading UCIOA 2008 and UCIOBORA

Colorado’s new law concerning carbon monoxide alarms was signed by Governor Ritter on March 24, 2009 and applies to sales, rentals and remodels of single family and multi-family residences on and after July 1, 2009. The definition of “multi-family dwelling” in the new law specifically includes condominiums, and therefore, subject to certain limitations, would apply to units in condominium associations.Continue Reading Carbon Monoxide Alarms and Colorado’s New Law

Open windows during the warmer months of the year allow you to experience the fresh, Colorado air.  But sometimes that air is not so fresh.  Secondhand tobacco smoke can make its way into your home, causing irritation and potential harm.  Community associations may have a role, and an obligation, in minimizing the impact of second-hand tobacco smoke in your home.

The Colorado Clean Indoor Air Act took effect nearly two years ago, on July 1, 2006. The Clean Indoor Air Act applies to community associations and prohibits smoking in restrooms, hallways, lobbies and other common areas in any public or private buildings, including condominium buildings, and within a fifteen foot radius of building entryways.  The law does not prevent owners from smoking in their residences, and does not clearly restrict smoking on private patios or balconies, although some associations impose more stringent smoking restrictions through their recorded covenants or rules.  Colorado community associations, and individuals, in violation of the Clean Indoor Air Act may face fines.  The law establishes a fine schedule of $200 for the first violation, $300 for the second, and $500 for the third and subsequent violations.Continue Reading Clearing the Air: Dealing with Secondhand Smoke

Our legislature continues to tinker with the responsible governance policies made mandatory several years ago. This year Governor Ritter signed H.B. 1135 which amends Section 209.5 of the Colorado Common Interest Ownership Act (CCIOA). Section 209.5 first became law in 2005 by what has commonly been referred to as S.B. 100 which required every association to adopt a responsible governance policy concerning enforcement of covenants and rules, including notice and hearing procedures and a schedule of fines. Prior to adoption of S.B. 100, CCIOA permitted an association to levy reasonable fines for violations of the declaration, bylaws and rules and regulations, but only after notice to the offending owner and an opportunity for a hearing.
Continue Reading Hearing Due Process – Now What?

"Going green" seems all the rage these days. From the cover of Newsweek, to hybrid vehicles, to Al Gore and the bevy of eco-friendly products at the local retail store, the push for consumer products and practices that minimize the impact on Earth and its resources has found its place in mainstream America.

Community associations, too, play a role in the green movement. New or old, common interest communities impact the Earth at both the association level and the individual homeowner level. Individuals and associations alike can implement many practices aimed at reducing energy consumption and the overall carbon footprint of their daily activities.

For the past three decades Colorado statutes concerning solar energy devices have guided community associations’ architectural policies. More recent legislation establishes mandates regarding community associations’ landscaping policies and seeks to allow homeowners to use more energy saving devices such as wind generators, retractable window awnings, and clotheslines.Continue Reading Greening Your Community Association