Who is responsible for the windows?

JohnC (Colorado)
Posts: 1

Posted:

I own one of eight units in a HOA built in 1996 that is self managed in Colorado. The President for the first 6 years had drawn up the HOA Declaration, articles of incorporation & the bylaws. There are no written "rules & regulation" or policies. The original HOA members were all friends & just seemed to agree that whatever anyone wanted to do was OK with the others; for example, the declaration states "no building, fence, exterior addition may be added but 2 units have added attached storerooms, others have fenced in their yard (common grouds). There is an Architecual Committee spelled out in the declaration but I was told that "we just did not mind". The Reserve fund total was about $15000.00 when I purchased my unit in 2002.

I was the first "new" owner & have been followed by 3 new owners so that there is a 50% old & new owners which has presented confusion over the interpretation of what the declaration, articles of incorporation & bylaws really mean. Now the HOA has major repairs--leaking roofs, windows, stucco reparir/painting, gutters & asphalt work for which "special" assessments have been voted on & approved.

An example of one problem of interpreting our HOA govering documents is Window repair/replacement. According to the HOA orginal President, & the following Prsident, (verbally & in writting) the "Exterior windows have been a HOA responsibility" & the window repair/replacement was paid for by the HOA over the years as well as for the unit owners who were selling their units.

In the HOA Declaration it states that assessments "may be used to provide...windows..." Bylaws state that maintenance & repair by owners include "all repairs of internal doors & windows" (a couple of units have glass windowson their inside loft wall). Finally, in the original President's annual meeting report, he stated that "all exterior windows are owned by the HOA & are subject to the maintenance by the HOA".

During the 2004 HOA annual meeting, the major repair of several exterior windows were listed & an assessment needed. Sunddenly, the "bylaws relative to window maintenance"were suspended (quote from the meeting minutes), assessment was voted in. As I remember the meeting, but not in the minutes, the bylaws would be addressed at the next HOA meeting to be held 3 months later. (No meeting ever took place) When the Treasurer sent out the quarterly dues, he stated that "at our last annual meeting we agreed that a one time window assessment be paid by all HOA members for the immediate needs. From this date forward members are required by our bylaws to pay for their own window repairs." I have sked for a review of the "interpretation" both verbally & in writing to no avail. Now, a new owner did not require the seller to replace a window & repair the rotten window frame because they believed that the HOA would pay for it only to find out last month that the BOD refuses.

For the 2005 HOA annual meeting, I submitted a motion to hire an attorney, who specializes in community association law, to look at our governing documents & help interpret what they mean; plus help draw up the policy & procedures required in the Colorado SB 100 & 89. The motion did not pass because the BOD felt that they could "review the documents to see if our HOA complies & if not, they would consider an attorney". "To much money would be spent hiring an attorney". The 2006 annual meeting came & went with the BOD stating that "they did not have time to review the documents" so it is "pending".

I would appreciate any advise you may give me. Thank you. Bonnie

JamesK (California)
Posts: 4

Posted:

It seems to me that the Board does not have the authority to simply suspend adherence to the bylaws or CC&Rs. A vote could be taken to change the CC&Rs but you should review them first to determine if that requires a simple majority to pass or, as in the HOA I am president of, a 2/3 majority. Nonetheless, if the CC&Rs state that the exterior windows are the responsibility of the HOA then it is unclear to me why you believe the Board is acting outside of its authority in replacing them. If the repair of windows is supposed to come from the HOA that does not mean the Board cannot require an assessment to fund the repairs if the funding is lacking from the reserves or if funding from the reserves reduces the reserves to an unacceptable level. There are, of course, grey areas inherent in most CC&Rs. In the CC&Rs of the HOA to which I belong it is stated that repairs due to structural defects are funded by the association, yet each owner is responsible for the replacement and upkeep of their individual unit's windows. Whenever those windows leaked the association paid to have the leaks repaired. When I became president I suggested that leaks from windows which had never been replaced (the building was 30 years old at the time) were now the responsibility of the owners as new windows would fix the problem and therefore the repair didn't fall under the jurisdiction of "structural defects" so much as "owner negligence." Then, for the sake of conformity of appearance, anyone with original windows had one year to replace them. This was generally accepted as reasonable and everyone paid for the replacement of their own windows. Don't know if this is of help or not but I hope so.

JamesK (California)
Posts: 4

Posted:

Bonnie --
After re-reading your submission I see better what you are saying. It seems your objection is that, while the Board was within its authority to require an assessment, they should not arbitrarily determine that in the future window replacement will be the responsibility of the owners. I believe you are correct in, as I stated, the Board does not have the authority to merely change the dictates of the CC&Rs as, again, a vote would be required by the entire membership to make such a change. If the Board were to try to shirk its responsibility for window replacement at some point in the future, they could be taken to court (possibly small claims court) and, in my estimation, would probably lose.
Jim