Homeowner associations are typically incorporated as nonprofit corporations, and accordingly, must comply with the Colorado Revised Nonprofit Corporation Act (“Nonprofit Act”). The Nonprofit Act is quite lengthy and contains provisions governing many aspects of nonprofit corporations. This article is limited to a discussion of Section 201 of the Nonprofit Act which requires nonprofit corporations to create and make available, on a regular basis, lists of names and addresses of its members.
 
Section 201(1) of the Nonprofit Act requires nonprofit corporations, unless their bylaws provide otherwise, to prepare an alphabetical list of names of all its members, entitled to vote at and receive notice of a meeting. This list must be prepared after the board determines which members are entitled to notice of a meeting or to take action by written ballot. It also requires that the list contain the address of each member as well as the number of votes each member is entitled to vote at the upcoming meeting.
 
Section 201(2) of the Nonprofit Act, further provides that the list must be made available to owners the earlier of 10 days before a member meeting or two business days after notice of a member meeting is sent. Once the list is made available, it should continue to be made available through the date of the member meeting and throughout the member meeting itself.
 
If an owner requests a copy of the list during a time when no meeting is scheduled, the association is not required to provide the list under the Nonprofit Act. However, the association remains subject to certain portions of the Colorado Common Interest Ownership Act (“CCIOA”).  More particularly, Section 317 of CCIOA, which applies to all common interest communities regardless of their creation date, requires associations to make records available to owners for inspection and copying. Accordingly, if a member list exists that was prepared for prior meetings, such list should be made available to the owner as an association record. However, if no such list exists, the association is not legally required to create one.
 
If a matter is to be voted upon by means of a written ballot in lieu of a meeting, the list must nonetheless be prepared and made available from the date the first written ballot is delivered to a member, through the date when the ballots must be received. Throughout the inspection availability period, as discussed above, the list need only be made available during regular business hours and copies may be made at the requesting member’s sole expense.
 
The Nonprofit Act makes it clear that not all members of an association are entitled to inspect and copy the list. In fact, only members of the association entitled to vote, including their agents and attorneys, have this privilege. This notwithstanding, the CCIOA records availability provision, as discussed earlier, does not make that distinction. According to CCIOA, any member of an association, or such member’s agent, is entitled to inspect and copy association records. Because CCIOA supercedes and takes precedence over the Nonprofit Act, all owners in a community, whether or not such owners are entitled to vote, should be allowed to inspect the member list.
 
Under the Nonprofit Act, refusal by an association to allow an eligible member, or his agent, to inspect and copy the list, entitles the member to bring legal action against the association. If the court finds that the association improperly denied the member access to the list, it may order the association to allow the member to inspect and copy the list at the association’s expense. The court may also postpone or adjourn the member meeting for which the list was prepared, or postpone the deadline by which written ballots must be received.
               
If the court finds that the association improperly denied a member access to the list, it is required to award the complaining member all costs incurred in pursuing this matter, including reasonable attorney fees and costs, unless the association can demonstrate it refused access to the list in good faith. The court may also order, in its discretion, the association to pay for any additional damages incurred by the complaining member as a result of being denied access to the list. This notwithstanding, Section 201 of the Nonprofit Act makes it very clear that failure to make the list available will not effect the validity of any action taken at a member meeting.
 
In summary, based on Section 201 of the Nonprofit Act, associations are required to prepare member lists, containing names and addresses of members entitled to vote, prior to meetings or distribution of written ballots. These member lists must be made available for inspection and copying during regular business hours to eligible members. Failure to comply with this Section of the Nonprofit Act, may result in the postponement of the meeting or deadline to receive ballots, as well as an entry of a judgment against the association requiring it to pay the complaining owner’s legal costs or other damages.