Authorization for Laws,Regulations and Declaration change

It is ALL in your documentation. Read your CC&R's and it will tell how to ammend or change that document. The by laws can change much easier than the CC&R's. They are more of the "living" docs of the HOA. A board vote, meeting notes. or memorandums sent out to ALL the membership may be all that is needed in that regard.

Overall what gives a HOA grounds for making changes? YOU. It is how much time and effort YOU spend attending meetings and being a participamt in your HOA. NOT a bystander...

Richard,

The requirements to amend your governing documents should be contained within those documents. If the documents are silent, then State laws would apply. Per the Colorado Condominium Ownership Act, the Bylaws are to contain methods of adopting rules/regulations concerning the common areas. Per the Colorado Revised Nonprofit Corporation Act, the Directors have the authority to amend the Articles of Incorporation and the Bylaws unless those documents reserve this authority to the members. Therefore, the question of authority will be within your governing documents. If the documents are silent, the law gives this authority to the Board.

Colorado Statute 7-130-201 - amendment of Bylaws (corporate law)
Colorado Statute 7-130-101 - amendment of Articles of Incorporation (corporate law)
Colorado Statute 38-33.3-217 - amendment of CC&Rs (if this section of the law is applicable. It might not be, you will need to read the law and governing documents to determine if it is).

If there are conflicts between any documents, the document with higher precedence will be the one that must be complied with (have control). Typically, the order of precedence is:

Federal Laws
Federal Regulations
State Laws
County Codes
City Ordinances
Declaration of Covenants Conditions and Restrictions (CC&Rs)
Articles of Incorporation
Bylaws
Resolutions adopted by the Board (rules, guidelines, procedures, etc.)

I used the word typically because some of the higher documents will defer to a lower document.

The Board may adopt resolutions (basically a formalized decision) to clear up any misunderstandings in the documents but typically may not amend the documents on their own (unless authorized to by the document or State law).

Example:

CC&Rs specifies elections will be held at annual meeting
Bylaws specify candidates must be nominated by the nominating committee
A Resolution could specify what criteria the nomination committee can use to nominate candidates.

CC&Rs require prior approval for any exterior changes
Articles of Incorporation says Association is to enforce the CC&Rs
Bylaws specifies a committee to be the approving authority for changes
Resolution specifies a procedure to be used
Resolution adopts guidelines to specify criteria the committee uses to approve request for changes
Resolution adopts enforcement procedures

Typically a Board may waive something within a Resolution but may not waive anything contained in a document they do not have the authority to amend.

The management company is usually the voice of the Board and does not have the authority to make changes on their own. However, the Board may have given the MC the authority to interpret the documents and what the MC is providing is a copy of their interpretation.

If you disagree with the MC's interpretation, my advice would be to request a hearing before the Board to clarify the interpretation. At the hearing have copies of the documents with the sections highlighted showing why you believe that interpretation is in error.

This is the best I can offer without having an example (the exact wording of the change and the section of a document it's in conflict with) provided.

Hope this helps,

Tim

Hi Richard:

I will add to Tim’s comment to potentially clarify regarding 38-33.3-217. You need to review the following section under CCIOA as per your statement the Association was established in 1982; therefore, only certain provisions of Article 33.3 potentially may apply.

38-33.3-117. Applicability to preexisting common interest communities.

(1) Except as provided in section 38-33.3-119, the following sections shall apply to all common interest communities created within this state before July 1, 1992, with respect to events and circumstances occurring on or after July 1, 1992:

(h) 38-33.3-203 and 38-33.3-217 (7);

(1.5) Except as provided in section 38-33.3-119, the following sections shall apply to all common interest communities created within this state before July 1, 1992, with respect to events and circumstances occurring on or after January 1, 2006:

(d) 38-33.3-217 (1);

(3) Except as expressly provided for in this section, this article shall not apply to common interest communities created within this state before July 1, 1992.

Now you also have Article 33 – Condominium Ownership Act which potentially also apply. Under this section:

38-33-102. Condominium ownership recognized. It references: Whether created before or after April 30, 1963 ….

However, you will need to keep an eye out for information generally at the bottom of various Sections such as for example this one and which states:

38-33-105.5. Contents of declaration.

(2) This section shall apply to any condominium ownership of property created on or after July 1, 1983.

Here is a link to CO Revised Statutes, if needed:

http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp=

Hi Tim:

I liked your comment above, very nice!

Unfortunately Richard will need to verify which sections potentially apply due to the age of his association.

One thought would be for him to maybe print out from the Information Office site the printable copy of CCIOA:

http://www.dora.state.co.us/real-estate/licensing/subdivisions/hoadocs/CCIOA-2009.a1.pdf

Then maybe highlight the sections which apply to his association regarding Article 33.3. This would make it easier to reference, but he needs to be aware they may change after awhile and check for updates.