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Question & Answer
Q: Can a declaration written in 1973, although outdated, still be used by an association?
A: Yes. Although an older declaration does not take advantage of certain beneficial laws coming into existence after their creation, they remain in force and continue to govern all homes in the pertinent community unless/until it is revised. However, to the extent portions of an older declaration violate current state or federal laws, these provisions may not be enforced by the association. Therefore, it is important to have an association’s governing documents reviewed by an attorney to make a board aware of any unenforceable provisions.
Q: What is the board’s obligation in a situation where, for over 30 years, homeowners have paid for the maintenance and repair of their patios, and now a homeowner in the community is challenging this obligation and claiming patio maintenance and repair is the association’s obligation?
A: The first thing the board should do (but is not legally required to do) is obtain a legal opinion as to who truly has the patio maintenance and repair obligation as provided for in the declaration. If the legal opinion determines it is the owners’ obligation, the association should continue to operate as it has in the past, but provide the challenging owner with a written explanation of the situation and why his position is incorrect. If, on the other hand, the legal opinion determines patios are the association’s maintenance and repair obligation, the board must restructure the association’s mode of operation with respect to patios. The fact the association has been improperly operating for over 30 years will not change its legal obligation with respect to maintenance and it will be required to correct its procedures once it determines the error. This change in patio maintenance will likely involve a modification to the current or next year’s budget to include the cost of such maintenance and repair. Additionally, the association should advise owners in writing of this patio maintenance/repair change.
Q: What is the hierarchy of an association’s governing documents, including any applicable laws?
A: Unless otherwise specified in the governing documents, the hierarchy of such documents and laws effecting associations is as follows:
- State and federal laws
- Map and declaration (According to Colorado law, the plat/condominium map and declaration are considered to be the same document.)
- Articles of incorporation
- Bylaws
- Rules and regulations, guidelines, policies, and resolutions
This hierarchy, or ranking, determines which document will control in the event of a contradiction between any of these documents. If a contradiction occurs, the document closer to the top of the “pyramid” will control. (Therefore, state and federal laws will trump any conflicting provisions contained in the documents below it.) In the event of a contradiction between any documents on the same level of the pyramid (i.e. two rules that contradict), the terms of the more recent document will control.
Q: My neighbor has built a fence in violation of our association’s covenants. I have reported this to the board, but they have declined to act on the matter. May I, as an individual owner, enforce the covenants of the association?
A: Yes. Homeowners in communities created before and after the enactment of the Colorado Common Interest Ownership Act (“CCIOA”) have the right to enforce the association’s covenants against another owner by filing a lawsuit.
The scope of your enforcement abilities as an owner, however, is not as broad as your association’s. An owner does not have the authority to enforce the payment of assessments. In addition, you may not seek to fine the violating owner, but may send a letter demanding compliance and/or file suit to enforce the covenant. Before making the decision to take your neighbor to court, you should be aware that if you do, CCIOA provides for the award of attorney fees to the prevailing party. Therefore, if you win, your neighbor will pay your attorney fees, but, if you lose, you may find yourself paying your neighbor’s legal bills.
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Education Forums
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Lunch Forums
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May 4
Is Restricting Renters The Answer?
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May 20
Success Basics For Board Members
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May 22
Successful Covenant and Rule Enforcement
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Loura Sanchez Featured Speaker
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Lorman Education Services presents: Legal Aspects of Condominium Development and Homeowners' Associations In Colorado
May, 12, 2006
9:00 AM - 4:30 PM
Radisson Hotel Stapleton Plaza
For course description or to register click here.
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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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