hoacolorado

Diligence and Fairness Is Our Goal

All of CCIOA Doesn’t Apply to All HOAs

This is a very short post to bring something to your attention, that I don’t think I’ve mentioned often enough. Although the title may appear to be a play on words, it’s very true. The Colorado Common Interest Ownership Act, generally speaking, applies to common interest communities/associations created after July 1, 1992. However, section 117 enumerates the parts of the statute that apply to all common interest communities regardless of date of origin. In my last post I mentioned section 209. If you go to the statute text section 117, you will see that 209.4, 209.5, 209.6, 209.7 were designated to apply to common interest communities created before July 1, 1992, and that happened after January 1, 2006. When you are looking at a rule or provision in the statute, be sure that it will apply to your Association.

Knowledge = Power. Unity Increases Power

The key to your success in a dispute with the board, assuming you are in the right, and assuming they are abusing their power, is your perspective and your strategy. Your perspective has to include the fact that you’re in an unfair process. They have an attorney and at this point, you do not. So your perspective includes reality, but not doomsday.

Your strategy will be to trumpet the right rule to the board and to your fellow members. When you address the board, you keep bringing up the right rule and the fact that you didn’t make it up, it’s the law according to the state. They may try to transfer the argument to a parallel issue. But you keep coming back to what the rule says, and you observe the board members because there’s probably going to be one or more that can be persuaded to your point of view. They just need a little courage and some part of the right rule to justify their decision in your favor.

During all this process, you want to make sure that you have not overlooked a mediation process available in your governing documents. Some bylaws allow for third-party mediation, others allow for a volunteer group of members to mediate or help mediate a dispute between an owner and the board. The board may have the power according to the bylaws and they may have the services of an attorney, and that puts you at a disadvantage. But you can overcome that disadvantage by staying on message (the right rule) and drumming up support for your cause. When your dispute comes before the board you want fellow members there to show support, and to speak in your behalf. The more support you can get to show up with you before board, the more you even the playing field. It takes hard work, and puts a lot of us out of our comfort zone.

Make sure you understand section 209.5 of CCIOA which says that regardless of your HOA’s declaration, bylaws etc., “the association may not fine any unit owner for an alleged violation unless: ….” You cannot be fined unless there is a written policy governing the imposition of fines, and that policy includes a fair and impartial fact-finding process. When you look in the statute, go to section 209.5 (2), and arm yourself with that information. Make notes on it or print out and take it with you, just make sure you understand your rights according to the law.

As I wrote in a previous post, this is not a last-minute strategy. If you’re in the last minute of a dispute, and stand to suffer loss, then perhaps you should hire an attorney. On the other hand, this strategy will serve you well, and may even bring about some change on your board of directors, as they are instructed and reminded that their conduct is governed by Colorado law.

“Right” Rule or Got Attorney?

Unfortunately sometimes being right doesn’t make any difference. It’s true that you should get a fair resolution to a problem by citing the right rule, especially if your board is misinformed or doesn’t know the right rule. A lot of boards (just like people), once shown the prevailing and right rule in a situation, will, if in error, reverse course and accept the correct interpretation of a rule or term. But what do you do if they don’t? What do you do if they’re being vindictive and are out to get you for whatever reason?

The Colorado Common Interest Ownership Act (CCIOA) does not have an enforcement clause in it. That means the State isn’t going to take any action if you file a complaint (based on a violation of CCIOA). If you’re in the worse of the worse disputes with a board of directors that is taking vindictive and illegal action against you, then you should consider hiring an attorney.  However, there is another way, but you’ve got to start it early on. It’s not a last minute strategy.

I’m using this blog to advocate that strategy for owners to deal with disputes, misconduct, and threatened legal action without hiring an attorney. The cornerstone of that strategy is to resolve the dispute long before you’re named in a lawsuit, and I’m going to tell you how to do that.

The “Right” Rule

5/20/2012

One of the most challenging aspects of the HOA governance model is the fact that there’s more than one source that describes the validity of a rule or regulation, but only one source that determines whether it’s valid or not. In Colorado, HOAs are under the rules and regulations of the Colorado Common Interest Ownership Act (CCIOA), the Colorado Non Profit Corporation Act, the HOA’s own Articles of Incorporation, Declarations, Bylaws, Rules, Regulations, and Policies. State law often allows what’s stated in the Declarations to prevail (be the final source of determination on a subject), and other times the final determination may be found in the bylaws or the Non Profit Corporation Act, or CCIOA itself. The point is that just because authority is given in your bylaws or declarations to owners or board, that fact alone doesn’t make it legal. An HOA’s bylaws often have provisions that are in conflict with state laws or regulations, and even in conflict within their own governing documents.

This fact is especially important in owner/board disputes, because knowing the final and prevailing rule, and its source, can put all arguments to rest that are based on an invalid clause in one or more of the governing documents. A little later on, I’ll tell you about a very simple and user-friendly app that enables you to quickly find that final source of authority in CCIOA.

I Didn’t Know How Much I Didn’t Know

February 29, 2012

“I woke up one morning and found myself under the rule of law.” Now, you must admit, that’s a fairly simple statement, and it applies to most of us, if not all. However, there are those of us that woke up to realize the keeper of that law is our HOA board of directors, who are responsible for administering our governing documents of the community we live in. This blog is about using and understanding the information contained in Colorado state statutes and individual HOA associations’ declarations, bylaws, policies, and rules. Navigating that information can be pretty challenging, as most of us don’t talk, speak or write in the format of statutory law, or bylaw booklets. As I try to effectively navigate that vast field of information, rules, laws and bylaws, and the intent of all, the consequence of all, the unintended consequence of all… all of the above… I thought I would invite others along for the ride to share in my triumphs, defeats, frustrations, and conclusions in my quest to know what applies to me and mine, what impacts positively the investment I have in my home, what impacts negatively the investment I have in my home, what’s good for me, and what’s good for my neighbor. My humor can be somewhat dry, but please know that I’m very serious in communicating and clarifying the rules and policies of HOA associations that have an impact on me and you.

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