Colorado HOA regarding Inspectiona dn Copying of Records- would CO Open Records Act apply?

Hello-

Our community has a Management Company and HOA Board of Directors from hell. Several home owners are working very hard within the community to do some research surrounding home owners rights. We have not had a meeting since July, and no minutes have been posted on the Management Website since March of 2017.

I requested through the Management Company a review of all email strings stating the approval of our new Landscape contractor. I signed off on a form that says "I agree to pay for all actual costs incurred by the Association, including $1.00 per single sided page for copies and $50.00 per hour for the cost of search, retrieve and copy the records requested. I understand the Association may require a deposit in an amount equal to the anticipated actual cost of the requested records."

They send me an email saying the email strings were available, and I owed $140 for the time and copies. They however would not release the actual landscape bids (I do not believe there were any- our landscape budget more than doubled when the new contractor came on board in May). I replied that without the landscape bids, the request was incomplete and I didn't need the rest.

The Management company sent me a letter stating they were going to deduct the $140 from my HOA fee account which would then put me in the negative for my monthly HOA dues. No where in the documentation for the HOA do I see where they can do this!

Also- I know this is a shot in the dark, but I am getting different answers. Would the Colorado Open Record Act apply for this? This looks like it applies to government documents to me, but thought I would check.

Thanks for the help!

I think you'll find you have a right to see all contracts entered into by the HOA. Other CO posters here will know better than I.

Having said that, I think you should have pushed the issue of getting a copy of the contract FIRST before asking about the chain of emails that led up to its approval.

Yep, you're right, Bill.

I suggest the OP ask for the prior contract then compare it to the new contract before they go making accusations.

In Florida all bids are considered official records and they must be retained for 1 year as opposed to the normal 7 year requirement. As official records, they must be made available to homeowners who request to see them.

We have had this discussion before. That some HOA's will charge the Fines and apply them to dues owed. That way they can lien for unpaid dues balance against the owner. That is because many states don't allow fines to be used as the basis for liens or foreclosure. It has to be unpaid dues or amounts owed the HOA that it put out to remedy a violation.

Our HOA we do NOT fine. Instead if you do not fix the violation, the HOA can fix/remedy out of their pocket. If the owner does NOT pay this amount back, then the HOA can place a lien for that amount. In this case, the HOA could do a similar action for the amount owed since it was a service provided.

Now in accounting purposes this amount has to be shown on the books. It's best to apply it as an unpaid dues. Otherwise, it could be a lawsuit for damages. Which it's best to avoid a lawsuit and apply a lien. A lawsuit has less teeth than a lien.

Funny not mine... and I have read ALOT of your posts... Just sayin...

Shelly,

Welcome to the forum.
I believe others have gone on a tangent vs. responding directly to your issue.

Colorado statutes are online via lexis nexus. Here is a link:
https://www.lexisnexis.com/hottopics/colorado/

The statute you identified is only applicable to the government.
However, The Colorado Common Interest Ownership Act ("CCIOA") which applies in its entirety to all associations created after July 1, 1992 (Title 38, Real Property, Article 33.3)

Per § 38-33.3-317. Association records, the Association may withhold records concerning contracts in negotiation. Hence, you can see the awarded contract but not the records, bids, etc. that the Board reviewed when considering who to award the contract to.

Regarding general membership meetings, the Association may hold as many general membership meetings as they see are needed. However, per CO § 38-33.3-308, the Association is only required to hold one meeting of the general membership per year (used for elections). Therefore, unless your governing documents require more frequent meetings, this is likely not an issue.

Hope this helps,

Tim

It sure is.

In retrospect, the person who requested the information should have made (or been asked to make) the request through the HOA. The MC could have provided the estimate, the HOA could have used that to secure the requestor's agreement they would pay the charges.

The MC would have conducted the research, prepared the documents, and provided them to the HOA. The HOA would have delivered the documents to the requestor and debited his account for the $140.00 as presumably the HOA would have received an invoice from the MC for the work. The HOA would have remitted payment of the invoice to the MC and would have invoiced the requestor.

Parenthetically, the process I described above is set out as in the operating rules developed for our client associations and the association in which we reside by our HOA. In Texas, the request for information is made through the HOA as described in Section 209 of the Property Code, and not directly to the MC by the requesting party as it is the responsibility of the HOA to provide the information requested.

In the scenario I described, if the $140.00 remained unpaid, it would be charged past due interest as appropriate and would enter the collection process. Under no circumstances (in Texas) could assessment payments be credited to the past due $140 (and related expenses/costs); there is a very explicit order of applications of payments set out in Section 209 of the Property Code which requires that payments received always be applied to current and past due regular and special assessments before being applied to any other amounts due.

In Texas the HOA could lien for the past due amount, past due interest, and cost of collections but could not foreclose as the amount owed is not a past due regular or special assessment which had been applied to all owner accounts. Upon sale of the property, the amount of the lien would be charged to the seller's proceeds of the sale and remitted to the HOA.

Since the HOA was not involved in the OP request, my belief is the only recourse now for the MC is Small Claims Court as I do not see a process for the MC or HOA to charge the amount due to the OP's account with the HOA. It appears the HOA is totally "out of it".

Shellyene ... Are you Condo or Single Family Homes? Because you noted "monthly" fee it makes me believe you are potentially Condo association, but I want to make sure.

If you are Condo you will also fall under CCIOA Article 33 Condominium Ownerhip Act. This act states:

38-33-107. Records of receipts and expenditures - availability for examination

The manager or board of managers, as the case may be, shall keep detailed, accurate records of the receipts and expenditures affecting the general and limited common elements. Such records authorizing the payments shall be available for examination by the unit owners at convenient weekday business hours.

The potential issue you have is you did not research your rights before requesting the information. You signed a form authorizing them to charge you for leg work and their time spent, which you could have done yourself and not cost you a single penny. Instead you should have asked to review the records yourself during weekday business hours.