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Ask O&H
Each month we answer legal related questions submitted from our readers.
Q: I am on the board of an association with a rooftop that is accessible to all residents. Some owners are nervous about liability and want it locked off. If it is kept open, a rooftop patio was suggested to decrease roof damage and restrict access to certain areas. Are roofs a huge liability? Or are people up there at their own risk?
A: Access to the roof can increase the association's exposure to liability. Any area of increased traffic can lead to increased chances of injury and damage to such area. At the same time, however, it may be desirable to have a rooftop open to residents, just as it may be desirable to have a common area playground for kids. The association should take steps to minimize its exposure to liability, such as ensuring the association has adequate insurance coverage, establishing and following appropriate risk management procedures, and making certain construction complies with all building codes.
Q: Can an association enforce covenants restricting overnight parking on streets maintained by the city? The covenants state that there shall be no overnight parking on the streets or driveways. Is this enforceable?
A: The Colorado appellate courts have not faced the issue of whether covenant restrictions are enforceable on public streets and trial courts are split. We have obtained favorable outcomes in both Arapahoe and Douglas county courts based upon the language in the associations' governing documents and the language on the plats dedicating the streets, but other trial courts have come to differing conclusions. The City of Parker adopted an ordinance in 1993 prohibiting covenants restricting parking on public streets, but we are unaware of any other jurisdictions in the metropolitan Denver area that have similar ordinances. In summary, enforceability of parking restrictions on public streets set forth in covenants is in fact uncertain and very dependent upon the language in the governing documents and the plat map.
* Please email or fax your questions with your name and contact information to: QAcolumnist@ortenhindman.com or 303.432.0999. Due to the volume of questions received, we cannot guarantee an answer.
[PRINTER FRIENDLY VERSION]
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Community Associations Institute
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The Community Associations Institute (CAI) is a nonprofit organization that provides education and resources to community associations. To find out more about CAI visit www.caionline.org
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