JanetB2 (Colorado)
Posts: 4,219
Posts: 4,219
Posted:
Hi Everyone:
I along with others in neighboring HOA subdivisions are proposing a local change in our city ordinance to add protection for HOA’s under development. We have had developers recently whom have not in essence properly followed CCIOA in amending the declaration, and are moving forward to insure in our local community there is protection for the HOA’s.
The team wants to be sure that everything is fair for all parties including developers, so I need any comments to consider all sides of the situation. The following is the proposed verbiage for our ordinance and is as follows:
Title XXX Article XXX ABC Municipal Code
After the sale of any fully constructed home within a declarant-controlled subdivision, as defined by the Colorado Common Interest Ownership Act, in the City of ABC, no amendment to the subdivision declaration shall change the Construction and Design Guidelines for homes within the subdivision except by a vote or agreement of sixty-seven percent of the votes allotted to non-declarant owners who have homes physically constructed in the subdivision.
If within the original filed Declaration of CCR’s the declarant specifically reserves the right to amend the Construction and Design Guidelines meeting all requirements of the Colorado Common Interest Ownership Act 38-33.3-205(1)(h), then said declaration shall supersede this code.
All other provisions of Section XXX shall remain in full force and effect.
Now in order to fully understand where we are coming from the following are CCIOA state statutes which apply:
The following statute referenced in our ordinance is where a developer is to reserve any development rights and other special declarant rights with both a description and the time limit to exercise any such right. By having said information in the declaration a homeowner then is able to determine based on the covenants whether or not pursuant to reserved right, if they desire to purchase within that development:
38-33.3-205. Contents of declaration.
(1) The declaration must contain:
(h) A description of any development rights and other special declarant rights reserved by the declarant, together with a description sufficient to identify the real estate to which each of those rights applies and the time limit within which each of those rights must be exercised;
The definitions in CCIOA which pertain to this situation and the referenced sections of the state statutes are as follows:
38-33.3-103. Definitions.
(12) "Declarant" means any person or group of persons acting in concert who:
(a) As part of a common promotional plan, offers to dispose of to a purchaser such declarant's interest in a unit not previously disposed of to a purchaser; or
(b) Reserves or succeeds to any special declarant right.
(14) "Development rights" means any right or combination of rights reserved by a declarant in the declaration to:
(a) Add real estate to a common interest community;
(b) Create units, common elements, or limited common elements within a common interest community;
(c) Subdivide units or convert units into common elements; or
(d) Withdraw real estate from a common interest community.
(21.5) "Phased community" means a common interest community in which the declarant retains development rights.
(29) "Special declarant rights" means rights reserved for the benefit of a declarant to perform the following acts as specified in parts 2 and 3 of this article: To complete improvements indicated on plats and maps filed with the declaration; to exercise any development right; to maintain sales offices, management offices, signs advertising the common interest community, and models; to use easements through the common elements for the purpose of making improvements within the common interest community or within real estate which may be added to the common interest community; to make the common interest community subject to a master association; to merge or consolidate a common interest community of the same form of ownership; or to appoint or remove any officer of the association or any executive board member during any period of declarant control.
The amendment section of CCIOA states with pertinent sections in bold:
38-33.3-217. Amendment of declaration.
(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent. The declaration may specify a smaller percentage than a simple majority only if all of the units are restricted exclusively to nonresidential use. Nothing in this paragraph (a) shall be construed to prohibit the association from seeking a court order, in accordance with subsection (7) of this section, to reduce the required percentage to less than sixty-seven percent.
(II) If the declaration provides for an initial period of applicability to be followed by automatic extension periods, the declaration may be amended at any time in accordance with subparagraph (I) of this paragraph (a).
(III) This paragraph (a) shall not apply:
(A) To the extent that its application is limited by subsection (4) of this section;
(B) To amendments executed by a declarant under section 38-33.3-205 (4) and (5), 38-33.3-208 (3), 38-33.3-209 (6), 38-33.3-210, or 38-33.3-222;
(C) To amendments executed by an association under section 38-33.3-107, 38-33.3-206 (4), 38-33.3-208 (2), 38-33.3-212, 38-33.3-213, or 38-33.3-218 (11) and (12);
(D) To amendments executed by the district court for any county that includes all or any portion of a common interest community under subsection (7) of this section; or
(E) To amendments that affect phased communities or declarant-controlled communities.
(b) (I) If the declaration requires first mortgagees to approve or consent to amendments, but does not set forth a procedure for registration or notification of first mortgagees, the association may:
(A) Send a dated, written notice and a copy of any proposed amendment by certified mail to each first mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment thereof; and
(B) Cause the dated notice, together with information on how to obtain a copy of the proposed amendment, to be printed in full at least twice, on separate occasions at least one week apart, in a newspaper of general circulation in the county in which the common interest community is located.
(II) A first mortgagee that does not deliver to the association a negative response within sixty days after the date of the notice specified in subparagraph (I) of this paragraph (b) shall be deemed to have approved the proposed amendment.
(III) The notification procedure set forth in this paragraph (b) is not mandatory. If the consent of first mortgagees is obtained without resort to this paragraph (b), and otherwise in accordance with the declaration, the notice to first mortgagees shall be considered sufficient.
(2) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.
(3) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community is located and is effective only upon recordation. An amendment must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's index in the name of each person executing the amendment.
(4) (a) Except to the extent expressly permitted or required by other provisions of this article, no amendment may create or increase special declarant rights, increase the number of units, or change the boundaries of any unit or the allocated interests of a unit in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association, including sixty-seven percent of the votes allocated to units not owned by a declarant, are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.
(b) The sixty-seven-percent maximum percentage stated in paragraph (a) of subsection (1) of this section shall not apply to any common interest community in which one unit owner, by virtue of the declaration, bylaws, or other governing documents of the association, is allocated sixty-seven percent or more of the votes in the association.
(4.5) Except to the extent expressly permitted or required by other provisions of this article, no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.
… continued to other sections of CCIOA 217 which do not in essence apply to situation.
At this time our City Council members requested and we have supplied the proposed ordinance information so they can supposedly discuss in their upcoming “city council work session”. In the meantime my team would like to get other outside HOA member input to insure what we are proposing is fair and balanced. We are now coming down to the wire with the final last minute tweaking.
Lastly, because this website has individuals from many states or communities in which statutes are different I want to insure everyone understands in my state and city we are proposing this ordinance in certain manner. In essence we are setting up a petition committee and getting X number of registered local voters to sign the ordinance petition. The City then would need to approve the ordinance pretty much as presented or if they do not approve, it will go before the local community voters to approve or disapprove.
Any thoughts, concerns, and suggestions are deeply appreciated.
Also for those from Colorado a sponsor for this website Hindman Sanchez has a website HOA LEGI-SLATE in which they track current legislation in our state: http://www.hoalegislate.com/. This is a good site in which to keep abreast of pending legislation for any of those interested.
I would like to thank anyone ahead of time for your comments, thoughts, or concerns regarding this issue.
I along with others in neighboring HOA subdivisions are proposing a local change in our city ordinance to add protection for HOA’s under development. We have had developers recently whom have not in essence properly followed CCIOA in amending the declaration, and are moving forward to insure in our local community there is protection for the HOA’s.
The team wants to be sure that everything is fair for all parties including developers, so I need any comments to consider all sides of the situation. The following is the proposed verbiage for our ordinance and is as follows:
Title XXX Article XXX ABC Municipal Code
After the sale of any fully constructed home within a declarant-controlled subdivision, as defined by the Colorado Common Interest Ownership Act, in the City of ABC, no amendment to the subdivision declaration shall change the Construction and Design Guidelines for homes within the subdivision except by a vote or agreement of sixty-seven percent of the votes allotted to non-declarant owners who have homes physically constructed in the subdivision.
If within the original filed Declaration of CCR’s the declarant specifically reserves the right to amend the Construction and Design Guidelines meeting all requirements of the Colorado Common Interest Ownership Act 38-33.3-205(1)(h), then said declaration shall supersede this code.
All other provisions of Section XXX shall remain in full force and effect.
Now in order to fully understand where we are coming from the following are CCIOA state statutes which apply:
The following statute referenced in our ordinance is where a developer is to reserve any development rights and other special declarant rights with both a description and the time limit to exercise any such right. By having said information in the declaration a homeowner then is able to determine based on the covenants whether or not pursuant to reserved right, if they desire to purchase within that development:
38-33.3-205. Contents of declaration.
(1) The declaration must contain:
(h) A description of any development rights and other special declarant rights reserved by the declarant, together with a description sufficient to identify the real estate to which each of those rights applies and the time limit within which each of those rights must be exercised;
The definitions in CCIOA which pertain to this situation and the referenced sections of the state statutes are as follows:
38-33.3-103. Definitions.
(12) "Declarant" means any person or group of persons acting in concert who:
(a) As part of a common promotional plan, offers to dispose of to a purchaser such declarant's interest in a unit not previously disposed of to a purchaser; or
(b) Reserves or succeeds to any special declarant right.
(14) "Development rights" means any right or combination of rights reserved by a declarant in the declaration to:
(a) Add real estate to a common interest community;
(b) Create units, common elements, or limited common elements within a common interest community;
(c) Subdivide units or convert units into common elements; or
(d) Withdraw real estate from a common interest community.
(21.5) "Phased community" means a common interest community in which the declarant retains development rights.
(29) "Special declarant rights" means rights reserved for the benefit of a declarant to perform the following acts as specified in parts 2 and 3 of this article: To complete improvements indicated on plats and maps filed with the declaration; to exercise any development right; to maintain sales offices, management offices, signs advertising the common interest community, and models; to use easements through the common elements for the purpose of making improvements within the common interest community or within real estate which may be added to the common interest community; to make the common interest community subject to a master association; to merge or consolidate a common interest community of the same form of ownership; or to appoint or remove any officer of the association or any executive board member during any period of declarant control.
The amendment section of CCIOA states with pertinent sections in bold:
38-33.3-217. Amendment of declaration.
(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent. The declaration may specify a smaller percentage than a simple majority only if all of the units are restricted exclusively to nonresidential use. Nothing in this paragraph (a) shall be construed to prohibit the association from seeking a court order, in accordance with subsection (7) of this section, to reduce the required percentage to less than sixty-seven percent.
(II) If the declaration provides for an initial period of applicability to be followed by automatic extension periods, the declaration may be amended at any time in accordance with subparagraph (I) of this paragraph (a).
(III) This paragraph (a) shall not apply:
(A) To the extent that its application is limited by subsection (4) of this section;
(B) To amendments executed by a declarant under section 38-33.3-205 (4) and (5), 38-33.3-208 (3), 38-33.3-209 (6), 38-33.3-210, or 38-33.3-222;
(C) To amendments executed by an association under section 38-33.3-107, 38-33.3-206 (4), 38-33.3-208 (2), 38-33.3-212, 38-33.3-213, or 38-33.3-218 (11) and (12);
(D) To amendments executed by the district court for any county that includes all or any portion of a common interest community under subsection (7) of this section; or
(E) To amendments that affect phased communities or declarant-controlled communities.
(b) (I) If the declaration requires first mortgagees to approve or consent to amendments, but does not set forth a procedure for registration or notification of first mortgagees, the association may:
(A) Send a dated, written notice and a copy of any proposed amendment by certified mail to each first mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment thereof; and
(B) Cause the dated notice, together with information on how to obtain a copy of the proposed amendment, to be printed in full at least twice, on separate occasions at least one week apart, in a newspaper of general circulation in the county in which the common interest community is located.
(II) A first mortgagee that does not deliver to the association a negative response within sixty days after the date of the notice specified in subparagraph (I) of this paragraph (b) shall be deemed to have approved the proposed amendment.
(III) The notification procedure set forth in this paragraph (b) is not mandatory. If the consent of first mortgagees is obtained without resort to this paragraph (b), and otherwise in accordance with the declaration, the notice to first mortgagees shall be considered sufficient.
(2) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.
(3) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community is located and is effective only upon recordation. An amendment must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's index in the name of each person executing the amendment.
(4) (a) Except to the extent expressly permitted or required by other provisions of this article, no amendment may create or increase special declarant rights, increase the number of units, or change the boundaries of any unit or the allocated interests of a unit in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association, including sixty-seven percent of the votes allocated to units not owned by a declarant, are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.
(b) The sixty-seven-percent maximum percentage stated in paragraph (a) of subsection (1) of this section shall not apply to any common interest community in which one unit owner, by virtue of the declaration, bylaws, or other governing documents of the association, is allocated sixty-seven percent or more of the votes in the association.
(4.5) Except to the extent expressly permitted or required by other provisions of this article, no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.
… continued to other sections of CCIOA 217 which do not in essence apply to situation.
At this time our City Council members requested and we have supplied the proposed ordinance information so they can supposedly discuss in their upcoming “city council work session”. In the meantime my team would like to get other outside HOA member input to insure what we are proposing is fair and balanced. We are now coming down to the wire with the final last minute tweaking.
Lastly, because this website has individuals from many states or communities in which statutes are different I want to insure everyone understands in my state and city we are proposing this ordinance in certain manner. In essence we are setting up a petition committee and getting X number of registered local voters to sign the ordinance petition. The City then would need to approve the ordinance pretty much as presented or if they do not approve, it will go before the local community voters to approve or disapprove.
Any thoughts, concerns, and suggestions are deeply appreciated.
Also for those from Colorado a sponsor for this website Hindman Sanchez has a website HOA LEGI-SLATE in which they track current legislation in our state: http://www.hoalegislate.com/. This is a good site in which to keep abreast of pending legislation for any of those interested.
I would like to thank anyone ahead of time for your comments, thoughts, or concerns regarding this issue.