Q:  I am a member of my association’s board of directors and attended one of Orten & Hindman’s SB 100 classes to learn what our association needs to do to comply with the new law. A few days later, while doing research, I came across another law firm’s website that had a different reading of some of SB 100’s provisions! How can associations stay out of trouble if the lawyers can’t agree on what the law requires us to do?

A:  SB 100 is a complex and technical law that covers a wide breadth of homeowner association topics. In an attempt to address the needs of Colorado’s homeowners as quickly as possible, this law was drafted quickly. As a result, in some places, it contains ambiguous provisions and conflicting sections. Until courts start defining these ambiguous provisions and reconciling the conflicting sections, attorneys may well have different good faith interpretations of the statute. Due to our involvement with SB 100 throughout the legislative session, Orten & Hindman’s reading of SB 100 takes in account the legislative intent communicated to us by its sponsors as well as general rules of statutory construction. We consider this knowledge of the sponsors’ legislative intent as an advantage in interpreting the new law.

Q:  I have heard that boards do not have to allow homeowners to speak at board meetings and I have heard that boards do have to allow homeowners to speak at board meetings. Which is correct?

A:  Section 38-33.3-308, which addresses homeowner participation at board meetings, contains two provisions that appear to conflict.  First, it states that homeowners need express authorization by a vote of the majority of a quorum of the board to speak at regular and special meetings of the board. [38-33.3-308(2.5)(a)]   The section then continues on to require that homeowners must be allowed to speak before the board takes formal action on an item under discussion.  [38-33.3-308(2.5)(b)]  How should an association reconcile these two provisions?

The legislative intent of this section was to give homeowners the right, not simply the privilege, to participate at board meetings (i.e. by voicing their opinions on the items under consideration).  However, this right extends only to speaking before the board takes formal action on an item under consideration.  During other board meeting deliberations or discussions, owners may only participate if expressly authorized by a majority vote of a quorum of the board.

Q:  We have two people running for two positions on our association’s board of directors. Can we use the parliamentary procedure of acclamation instead of a secret ballot?

A:  Associations may continue to use acclamation to elect board members until January 1, 2006. On that date, the provision requiring the use of secret ballots to elect board members becomes effective. [38-33.3-310(1)(b)(I)] Therefore, for board member elections held on or after January 1, 2006, associations will have to use secret ballots to elect board members. The requirement to use secret ballots applies to all board member elections (regardless of how many positions are open and how many individuals are running) despite the ease and simplicity of using acclamation in certain situations (e.g. two open positions and two candidates).

Q:  I was told that SB 100 requires associations to require alternative dispute resolution as a precondition to the filing of a lawsuit. Is this true?

A:  No. SB 100 has a provision that declares the legislative intent to encourage associations to use mediation or arbitration as a precondition or alternative to filing a lawsuit. [38-33.3-124] However, there is no requirement for associations to make use of any alternative dispute resolution methods.