Procedures for vote to change covenants - CO

Our board has recently announced that they have received the requisite number of signatures to replace our current covenants with a new set of covenants that they have drafted. We are a Colorado HOA and my understanding has been that the proper procedures require a meeting, a quorum, the opening of a vote and that the votes must be cast by members of the HOA in person or by proxy during the meeting of owners being held for that purpose. What essentially took place was that the Board, when unable to get the requisite 67% of the vote of the owners in a meeting for such purpose, began a telephone campaign to gather signatures and did so over a period of about two years. If signatures are gathered in such a fashion, does that constitute a legal voting structure? There are many questionable rules imposed by the new covenants, some that are clearly in violation of CCIOA rules, but most of our owners are very uneducated about CCIOA and have either not read the covenants changes, or don't really understand what the changes mean to them. The new rules prohibit owners from being able to sue the board or any other member of the HOA, but the HOA can still sue any owner for any number of infractions. If we were to file a complaint to publicly state our opposition to this situation, where would we file, and what would be the best statement we could make?

Thank you for your reply. I'm sure that legal guidance was provided regards to developing the new covenants, but how much material was added or altered outside of that advice is anyones guess.

My main concern at this point is the method that was used to institute the new covenants. Does someone know if it's legal to just canvas the ownership over a period of months to gather votes/signatures without the benefit of any official vote structure? Also, owners did make comments and stated their opposition to certain provisions of the proposed covenants. Those concerns were never addressed or answered at all. Also, the board presented the changes to the ownership saying that the changes were required by CCIOA under bills 100 and 89 and that if the owners didn't approve them, they would get them approved in court. I understand 89 and 100 to simply require adoption of specific policies and procedures, but not as a mandate to change covenants? Owners were told that the association was legally required to change the covenants documents to meet CCIOA regulations.

Susan, the Board can solict signatures over a period of months. Were all owners provided a copy of the amendments for which they voted? They should have been and that should be exactly what would need to be be filed with the County Clerk and Recorder upon approval of 67% of all owners. Those owners who oppose can vote not to approve. And any Owner has the right to challenge the ballots (which should be approved in writing). The CC&Rs do not have to be amended when there are additions to CCIOA; they happen almost every year.

If the amendments do not comply with higher order laws they are not legally valid. For example, who can and can not sue would be a rediculus unsupportable amendment. You stated that legal guidance was provided so perhaps you are not informed on all the facts.

Thanks so much folks for your kind responses. It's all food for thought and will be considered. Merry Christmas everyone!

Susan

I've written extensively about this type of issue with Boards using their position to effect homeowners for their own self serving reasons and abusing power and position. This may be one. I am in Colorado. First, CCIOA provides guidelines and carry no enforcement or penalities for any violations. The guidelines are good but can be ignored by Boards. Most HOA's allow for petitions for actions to be taken. I have no idea why your Board campaingned like they did to get signatures as they could easily have simply put up for vote, in part or in full, changes they wanted to the by-laws without homeowners permission, that is a fact in my community where the Board independently decided they wanted no more rental properties and placed it up for a general vote, the residents didn't have an open discussion at a meeting prior to the ballots went out and the Board put out a position paper why "no rentals" were the thing to do with no allowance for opposition. So your Board can (in my community in Highlands Ranch) can simply put up changes to by-laws without petitioning. Again, forget your State laws as they are meaningless and not enforceable and your by laws if breached by your Board are also more or less only what the Board should do but can be effectively used against homeowners to comply with covenants: just the way it is. Again, check out SF100 and CCIOA and the new Ombudsman bill all of which indicate no enforcement or penalities for non-compliance.

The new rules prohibiting owners from being able to sue the board or any other member of the HOA are simply not valid. You can sue your HOA all you want, winning is another thing and so is the cost to sue and a low possibility of winning. You will be going to Small Claims in Colorado to sue a Board unless it involves a felony. Small Claims in Colorado at one time didn't allow for lawyers to defend the Board, that has been changed and most don't know about that. Unless you can afford a lawyer and can pay for the HOA costs and their lawyers if you lose in Court, I would say avoid going to Court. Most HOA's will not mediate from my experience and will take you to Court knowing they have a 90% chance of winning (so it seems from Court records I reviewed). Also, if you win you lose, the HOA is using your HOA fees to fight you/defend them so your HOA incurs an expense and that means your own money.

Good luck and prior to going to Court please read the Small Claims Handbook on the State Court web site. I had the Douglas County web site remove incorrect information on lawyer representation in Small Claims and many other sites have this information wrong.