Are COA Boards allowed to ignore some legislation and not others?

Started by WoodyB • 6 replies • 2463 views

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WoodyB (Colorado)
Posts: 9

Posted:

In a follow-up to an earlier posting, Colorado has recently amended the Colorado Common Interest Ownership Act which is of course the legislation in which our orginal Articles, etc. were written from. However, since this original Act was amended last summer with the SB05-100 Act (which was written to improve the homeowners' rights), it appears our board has added to our bylaws only those laws that benefit them and not the homeowners.

For example, there is a particular statute which indicates homeowners may now place political signs and flags in their windows. A second law now allows xeriscaping and specifically states that any covenant that prohibits this is uniforceable. However, at our last monthly board meeting, the rep from the management company said that some of the statutes in this act does not apply to our association because it is a condo project. Yet this act does not specify which type of association this applies, therefore, can they still just ignore these laws or any other that takes control out of the hands of the board? This just doesn't seem right. Would someone with legal background please explain this to me? Thanks.

RogerB (Colorado)
Posts: 5,067

Posted:

Woody, HOA boards are not legally allowed to ignore any legislation. Unfortunately some may misunderstand or knowingly ignore them. You seem to be aware that you got bad advice. Did you question the agent? Did you request a copy of the specific paragraph of CCIOA they were interpreting? The only exceptions I see are for time-share units.

There are many Boards and managing agents who are providing erroneous info on SB05-100. For example, last night I received a phone call from a friend who said his HOA sent out a notice of their annual meeting which stated that proxies for voting for directors was no longer allowed due to SB-100. He wondered, why is my right to be represented when I can not attend being denighed? I told him the notice was wrong. Perhaps they confused this with the right to not accept an improper proxy.

CCIOA was first created in 1992 and has been incorporated by some HOAs into Declarations, Bylaws, and Rules and Regulations. But I am not aware that it is part of the Articles of Incorporation. Regardless, the new statutes supercede all of these documents, whether an association adopts them or not.

RogerB

WoodyB (Colorado)
Posts: 9

Posted:

Thanks Roger, now the trick is how to force the board to follow the all the rules rather than cherry pick what benefits them only...any other suggestions? woody b

HaroldS (Arizona)
Posts: 906

Posted:

woody - unfortunately there is no way to force a board to follow the rules short of a lawsuit. State statues mainly have no enforcement teeth, so there is no one to call and report to. (The jury is still out on how helpful to homeowners the ombudsman established by some states will be.) The courts consider the CC&Rs a contract that you signed freely. Boards know most people can't afford to sue, and can base their actions on that. HOAs are so one-sided. Harold

WoodyB (Colorado)
Posts: 9

Posted:

Thanks Harold, However, ironically there is now a statute in the SB05-100 that forces the board to pay for all court costs if they lose a lawsuit against them. In that case, if I or we were to locate a good real estate lawyer, wouldn't it be worth persuing if the lawyer thinks there is a good chance for a ruling in the favor of the homeowners?

RogerB (Colorado)
Posts: 5,067

Posted:

Woody, this is in response to your question below. What if you lose? Make sure the attorney you hire that "thinks there is a good chance of a ruling in the favor of the homeowners" is willing to put their money where their mouth is. In other words, they will sign an agreement upfront that the only pay they will receive is what is awarded by the courts.
HA HA

Woody asked, "wouldn't it be worth persuing if the lawyer thinks there is a good chance for a ruling in the favor of the homeowners?"

RogerB (Colorado)
Posts: 5,067

Posted:

Oops Woody, I forgot to add in the agreement that the attorney you use, " .. and if we lose the attorney we use will pay all legal costs of the prevailing party."

HA HA HA HA

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