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Frequently Asked Questions

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The HOA Information Office does not have regulatory or investigative power and will not contact your HOA or management company. The HOA Information Office tracks inquiries and complaints that are then reported annually. Depending on the nature of the complaint, the HOA Information Officer may contact complainants to gather additional information.

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HOA registration is online only through the Online HOA Registration page. Registrants will need to register their contact information and then create an HOA registration. Note that this is a two-step process and merely registering your contact information is not sufficient to satisfy the registration requirement.

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The HOA registration process requires you to input contact information of the HOA and the management company, if applicable, and also requires you to provide a Secretary of State ID number as well as the recording date of the HOA declaration (covenants) as well as the reception number and book and page, if applicable. Additionally, you will need a credit or debit card to pay for the transaction to complete the HOA registration.

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An HOA’s Secretary of State ID will be located on the articles of incorporation, as well as the annual renewal documents from the Secretary of State. That number is available on the Secretary of State’s online database.

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This information is located on the declaration (covenants) themselves. If you do not have a copy of the documents you can contact the clerk and recorder’s office in the county where the property is located. Some counties no longer use book and page numbers and many counties provide declaration information online.

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An HOA is required to renew their registration every year. Renewal occurs one calendar year after the date that the association initially registered. If information has changed, the HOA contact must change the information within ninety (90) days of such change.

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If an HOA fails to register with the Division of Real Estate they are precluded from imposing or enforcing a lien for assessments. This provision also applies if the HOA fails to renew its registration with the Division of Real Estate.

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All HOAs organized under the Colorado Common Interest Ownership Act are required to register with the Division of Real Estate. Colorado HB13-1134 (2013) requires all common interest communities to register with the HOA Information Office and Resource Center, including those which were created before July 1, 1992. This requirement is effective August 7, 2013.
 

Master associations and road maintenance associations who hold common property and who have, and enforce, covenants are included in the registration. Voluntary associations, commercial planned communities, special/water/metro districts, are not required to register. If you have questions of whether you association falls under the jurisdiction of §38-33.3-401, C.R.S. the HOA Information Office suggests you seek legal counsel as to the applicability of the law to your HOA.

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The HOA Information Office cannot give referrals for legal services. The Colorado Bar Association and local bar associations can assist persons with finding an attorney.

 
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On the website, you may find a list of all currently registered HOAs which is updated monthly. Please note that the list is not comprehensive as some entities may be exempt from registration or have not registered yet.

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Colorado law requires all board meetings to be open to the members of the association, unless the board goes into an executive session. Colorado law (C.R.S. 38-33.3-308(4)) allows the executive board or any committee thereof, to go into executive or closed session and can prohibit owner attendance for the following limited matters:

  • Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
  • Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
  • Investigative proceedings concerning possible or actual criminal misconduct;
  • Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
  • Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy.
  • Review of or discussion relating to any written or oral communication from legal counsel.
     

Prior to the time the members of the executive board or any committee thereof convene in executive session, the chair of the body shall announce the general matter of discussion as enumerated in the statute.

The executive board can allow attendance of such other persons as requested by the board (such as their attorney, committee members, employee(s), homeowner(s), etc.).

The right of a member to speak prior to any action being taken by the board of directors only applies to meetings of the board that are open to the members.

No rule or regulation of the board or any committee thereof shall be adopted during an executive session. A rule or regulation may be validly adopted only during a regular or special meeting or after the body goes back into regular session following an executive session.

The minutes of all meetings at which an executive session was held shall indicate that an executive session was held, and the general subject matter of the executive session.

Usually the minutes of an executive session do not state the details of what was discussed during that executive session. A new Colorado law, HB12-1237 (effective January 1, 2013) allows associations to withhold executive session records from inspection by owners.

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REMOVING EXECUTIVE BOARD MEMBERS

Look first to your association bylaws, as they usually include a provision to remove board members, as well as the procedure for removal and under what circumstances. Commonly, there is a requirement that a certain number or percentage of owners must sign a petition requesting a special meeting to remove a board member or members. The association must then schedule and notice that special meeting to allow the owners a vote to remove those board members. Typically, this is done at a special owner meeting instead of an annual owner meeting due to the timing of the removal and meeting notice provisions.

The Revised Colorado Non-Profit Act does allow members of a nonprofit corporation to remove board members at an owner meeting noticed specifically for that purpose, or by a judicial proceeding below:
 

Colorado Revised Non-Profit Act 7-128-108
Removal of directors

(1) Directors elected by voting members or directors may be removed as follows:
    (a) The voting members may remove one or more directors elected by them with or without cause unless the bylaws provide that directors may be removed only for cause.
    (b) If a director is elected by a voting group, only that voting group may participate in the vote to remove that director.
    (c) Subject to section
7-127-208 (3), a director may be removed only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.
    (d) A director elected by voting members may be removed by the voting members only at a meeting called for the purpose of removing that director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director.
    (e) An entire board of directors may be removed under paragraphs (a) to (d) of this subsection (1).
    (f) A director elected by the board of directors may be removed with or without cause by the vote of a majority of the directors then in office or such greater number as is set forth in the bylaws; except that a director elected by the board of directors to fill the vacancy of a director elected by the voting members may be removed without cause by the voting members, but not the board of directors.

(2) Unless otherwise provided in the bylaws:
    (a) An appointed director may be removed without cause by the person appointing the director;
    (b) The person removing the director shall do so by giving written notice of the removal to the director and to the nonprofit corporation; and
    (c) A removal is effective when the notice is received by both the director to be removed and the nonprofit corporation unless the notice specifies a future effective date.

(3) A designated director may be removed by an amendment to the bylaws deleting or changing the designation. 

7-128-109
Removal of directors by judicial proceeding

(1) A director may be removed by the district court of the county in this state where a nonprofit corporation's principal office is located or, if the nonprofit corporation has no principal office in this state, by the district court of the county in which its registered office is located, or, if the nonprofit corporation has no registered office, by the district court for the city and county of Denver, in a proceeding commenced either by the nonprofit corporation or by voting members holding at least ten percent of the votes entitled to be cast in the election of such director's successor, if the court finds that the director engaged in fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the nonprofit corporation, or a final judgment has been entered finding that the director has violated a duty set forth in part 4 of this article, and that removal is in the best interests of the nonprofit corporation.

(2) The court that removes a director may bar the director from reelection for a period prescribed by the court.

(3) If voting members commence a proceeding under subsection (1) of this section, they shall make the nonprofit corporation a party defendant.

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Investment of Reserve Funds

To promote responsible governance, associations shall adopt policies, procedures, and rules and regulations concerning the investment of reserve funds. A board has an obligation to invest and manage reserve funds in a prudent and responsible fiduciary manner.

Reserve Study

To promote responsible governance, associations shall adopt policies, procedures, and rules and regulations concerning certain matters, such as a reserve study. Under the Colorado Common Interest Ownership Act (CCIOA), an association is not required to undertake a reserve study; however, it must have a policy in place to address:

  • When the association has a reserve study prepared for the portions of the community maintained, repaired, replaced, and improved by the association; whether there is a funding plan for any work recommended by the reserve study and, if so, the projected sources of funding for the work; and whether the reserve study is based on a physical analysis and financial analysis. An internally conducted reserve study shall be sufficient.

A reserve study is a planning tool designed to assist the association to anticipate, and prepare for the property's major repair and replacement projects and expenditures. Some examples can include: roof replacement of the buildings, replacement of building siding, resurfacing of the roadways, or the replacement of the building elevator. It is a budgetary planning tool that consists of two parts, the physical analysis and the financial analysis, and it identifies the current status of the reserve fund and a funding plan to offset the anticipated future major common area expenditures. The study can determine the remaining useful life of the physical components of the association that are required to be maintained, as well as the time frame and expenses associated with the repairs and replacement of those components. The study can be completed by a hired professional, or it can be done internally.

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At an appropriate time determined by the board, but before the board votes on an issue under discussion, unit owners or their designated representatives shall be permitted to speak regarding that issue. The board may place reasonable time restrictions on persons speaking during the meeting. If more than one person desires to address an issue and there are opposing views, the board shall provide for a reasonable number of persons to speak on each side of the issue.

Frequently however, problems and disputes arise at meetings between board members and the membership. Having meeting procedures in place can assist with running an effective meeting, such as parliamentary procedure.

 
Parliamentary Procedure:
 

Parliamentary procedure (Roberts Rules of Order) is specifically designed to help debates and discussions go smoothly, especially when you have a large number of people or contentious issues. It helps to ensure that everyone in such a meeting gets a fair and equal opportunity to participate and speak, utilizing formal motion procedures.

 

Many times an association may only have to consider adopting these rules on a temporary basis when that particular need arises and when they would be useful for effectively running the meeting.

For instance, these rules can:

  • Require that everyone who wishes to speak must sign up to do so.  Provide that if a vote is to be held on an issue, speakers must sign up on either the “in favor” or “against” list.

  • Have speakers present their position in the order that they sign up, and then alternating between “in favor” or “against” points of view.

  • Can allow people who wish to speak a second time to be called on after everyone has had an opportunity to speak once.

  • Allow for a timekeeper, or parliamentarian, who can be in charge of time limits for speakers and to make sure that speakers stay on the issue at hand.

  • Limit the length of time that an individual is allowed to speak on an issue, for instance 3 minutes.

  • Require formal motions and seconding of motions, as well as properly amending motions.

At the heart of parliamentary procedure is the rule of the majority with respect for the minority. The objective is to allow deliberation upon questions of interest to the association and to arrive at the sense or the will of the membership upon these questions. Everyone should have an opportunity to speak at owner’s meetings at the appropriate time and in a well-mannered way.
 

The official website for Robert Rules of Order and more information is:

http://www.robertsrules.com/

 
 
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(Colorado law (C.R.S. 38-33.3-308) “CCIOA”

Owners’ Meetings

Meetings of the unit owners of the association are to be held at least one (1) time per year. These meetings are usually held for election purposes, budget approval, amendments to governing documents, and other important matters of interest to the association and its members.

Notice of the owners’ meeting must be given not less than ten (10) days, and no more than fifty (50) days in advance of any such meeting. The secretary of the association or another officer specified in the bylaws shall cause the notice to be hand delivered or sent prepaid by US mail to the mailing address of each unit owner or the owner’s designated address.

The notice shall also be physically posted in a conspicuous place for the owners, which is both practical and feasible, and is in addition to any electronic posting or electronic mail notices that may be sent out. The notice shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a member or officer of the executive board.

Board Meetings

All regular and special meetings of the association's executive board, or any related committees, are open to attendance by all members of the association or their designated representatives. Agendas for meetings of the executive board are to be made reasonably available for examination by all members of the association.

Notice requirements for board meetings are usually described in the association's bylaws. CCIOA is silent on the notice requirements for executive board meetings.

Special Meetings

Special meetings of the unit owners can be called by the president, a majority of the executive board, or by unit owners having twenty percent (20%), or any lower percentage as stated in the association’s bylaws, of the votes in the association. Proper notice of the special meeting must be given to the unit owners.

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Members of an association have an obligation to pay assessments for the benefit of the association pursuant to its covenants, as well as pursuant to the Colorado Common Interest Ownership Act (CCIOA).

Relevant sections of CCIOA with regard to the owner’s responsibilities and the association’s ability to enforce and collect assessments include:
 

§ 38-33.3-102. Legislative declaration

(1) The general assembly hereby finds, determines, and declares, as follows:

(a) That it is in the best interests of the state and its citizens to establish a clear, comprehensive, and uniform framework for the creation and operation of common interest communities;

(b) That the continuation of the economic prosperity of Colorado is dependent upon the strengthening of homeowner associations in common interest communities financially through the setting of budget guidelines, the creation of statutory assessment liens, the granting of six months' lien priority, the facilitation of borrowing, and more certain powers in the association to sue on behalf of the owners and through enhancing the financial stability of associations by increasing the association's powers to collect delinquent assessments, late charges, fines, and enforcement costs;

 

§ 38-33.3-123. Enforcement--limitation

(1)(a) If any unit owner fails to timely pay assessments or any money or sums due to the association, the association may require reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure without the necessity of commencing a legal proceeding.

(b) For any failure to comply with the provisions of this article or any provision of the declaration, bylaws, articles, or rules and regulations, other than the payment of assessments or any money or sums due to the association, the association, any unit owner, or any class of unit owners adversely affected by the failure to comply may seek reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure to comply, without the necessity of commencing a legal proceeding.

(c) In any civil action to enforce or defend the provisions of this article or of the declaration, bylaws, articles, or rules and regulations, the court shall award reasonable attorney fees, costs, and costs of collection to the prevailing party.

 

§ 38-33.3-209.5. Responsible governance policies--due process for imposition of fines

(1) To promote responsible governance, associations shall:

(a) Maintain accurate and complete accounting records; and

(b) Adopt policies, procedures, and rules and regulations concerning:

(I) Collection of unpaid assessments;


§ 38-33.3-302. Powers of unit owners' association

(1) Except as provided in subsections (2) and (3) of this section, and subject to the provisions of the declaration, the association, without specific authorization in the declaration, may:

(a) Adopt and amend bylaws and rules and regulations;

(b) Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners;

(k) Impose charges for late payment of assessments, recover reasonable attorney fees and other legal costs for collection of assessments and other actions to enforce the power of the association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association;

 

§ 38-33.3-316. Lien for assessments

(1) The association, if such association is incorporated or organized as a limited liability company, has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner. Unless the declaration otherwise provides, fees, charges, late charges, attorney fees, fines, and interest charged pursuant to section 38-33.3-302(1)(j), (1)(k), and (1)(l), section 38-33.3-313(6), and section 38-33.3-315(2) are enforceable as assessments under this article. The amount of the lien shall include all those items set forth in this section from the time such items become due. If an assessment is payable in installments, each installment is a lien from the time it becomes due, including the due date set by any valid association's acceleration of installment obligations.


Collection Remedies that can be used by the association:

  • Turn the matter over to a collection agency.

  • Seeking a judgment through a formal lawsuit, that can then be collected through a bank levy or wage garnishment.

  • Collecting rent from the tenant of a delinquent owner.

  • Appointing a court appointed receiver to collect rental proceeds from the tenant of a delinquent owner.

  • Assessment lien against the real estate property.

  • Foreclosure

 
 
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BOARD MEMBER DUE DILIGENCE AND DUTIES

DUE DILIGENCE (also known as due care) is the effort made by an ordinarily prudent or reasonable party to avoid harm to another party or himself. Failure to make this effort is considered negligence.

Generally, due diligence refers to the care a reasonable person should take before entering into an agreement or a transaction with another party. Due diligence is essentially a way of preventing unnecessary harm to either party involved in a transaction.

For example, due diligence would be the necessary research and analysis of a Board undertaken in preparation for a business decision.

BLACK’S LAW DICTIONARY, which is used as an authority for legal research states that Due Diligence is: “Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.”

In many instances, there has been more liability placed upon Board members, which in turn means that Board members need to be more responsible, and need to seek out more information in their decision-making process.

BOARD FIDUCIARY DUTIES

Board members also must maintain certain fiduciary responsibilities, which include:

The Duty of Care is a legal obligation imposed on an individual requiring that they exercise a reasonable standard of care while performing any acts that could foreseeably harm others.


The Duty of Loyalty is a term used in corporate law to describe a fiduciary's loyalty to a corporation………..in this case, the Board Members loyalty to the Association and its Owners.

The Duty of Confidentiality is the restriction on the accessibility and dissemination of information by the Board Members in the scope of their duties.

 
 
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The Colorado Common Interest Ownership Act (CCIOA) does contain educational requirements for owners and boards of directors. There are many ways to provide owners with education, such as having guest speakers or legal counsel come to an annual meeting and inform the community of new laws or specific issues applicable to homeowner’s associations, as well as advising on one’s rights or responsibilities. Some associations also utilize their newsletter or website to disseminate educational materials.

Board of director members should also take advantage of educational opportunities by learning and obtaining skills to be a better board member for the community. There are many educational classes and seminars available for board members to attend, as well as educators that are willing to bring their knowledge directly to the association board at a meeting or educational board retreat.

Here are the relevant statutes in CCIOA concerning these educational requirements:

§ 38-33.3-209.7. Owner education

The association shall provide, or cause to be provided, education to owners at no cost on at least an annual basis as to the general operations of the association and the rights and responsibilities of owners, the association, and its executive board under Colorado law. The criteria for compliance with this section shall be determined by the executive board.

§ 38-33.3-209.6. Executive board member education

The board may authorize, and account for as a common expense, reimbursement of board members for their actual and necessary expenses incurred in attending educational meetings and seminars on responsible governance of unit owners' associations. The course content of such educational meetings and seminars shall be specific to Colorado, and shall make reference to applicable sections of this article.

 
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Oftentimes an association board must handle very complex or time-consuming matters where they may be tasked with issues that require specialized knowledge, expertise and experience. At other times in the board decision-making process, it may be valuable to the board and community to understand the history and reasoning behind past board practices and decisions.

An advisory board or advisory board member(s) may be able to assist with providing that information, experience and knowledge to the present board of directors. Advisors could be utilized to handle a specialized project and act as a supporting role to the board. Some specialized areas of expertise and backgrounds could be in the areas of business, accounting, legal, insurance, management, construction and real estate. Past board presidents could be very helpful explaining and filling in the history of the community.

Not only can advisory members fill any gaps that may be missing on the present board with regard to specialized knowledge or expertise, they could also be considered potential future board members, learning the board process and gaining experience for the benefit of the community.

If you consider these types of advisors, it is important to have written policies in place in the association’s governing documents. Consider this type of advisor’s purpose, membership, appointment, termination, orientation, attendance, duration, authority, restrictions, guidelines, conflict of interest issues, and ethical concerns. Discuss this advisor concept with legal counsel to make sure that it is workable with the association’s declarations and bylaws.

 
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  • Articles of Incorporation establish the legal basis of the association and are filed with the Colorado Secretary of State’s Office. They are typically in the form of an incorporated non-profit corporation.
  • Map or Plat shows and defines the owner’s title to the property, as well as the association’s title with regard to the common areas. It is recorded at the county recorder’s office where the property is located.
  • CC&R's (Covenants, Conditions, and Restrictions) and sometimes referred to as Declarations, contain the deed restrictions to the property. They are recorded at the county recorder’s office where the property is located.
  • Bylaws are the rules concerning the management and administration of the corporation.
  • Resolutions, Rules & Regulations are additional restrictions for the community members that the association can adopt.
  • Federal Laws include The Fair Housing Act, Internal Revenue Code, the Americans with Disabilities Act, and the Fair Debt Collection Practices Act.
  • State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations include the Colorado Common Interest Ownership Act (CCIOA) and the Colorado Non-Profit Act. There are also some additional state laws of concern, such as the Colorado Fair Housing Law and the Colorado Fair Debt Collection Practices Act.
  • Local Municipal Ordinances may include building codes, animal control, and parking restrictions.
  • Additional Legal Authority may impact an association such as court case law; standards set by and for professionals, and certain lender requirements.
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The Colorado Common Interest Community Act (CCIOA) was amended in 2011 to require a conflict of interest policy for associations under its responsible governing policies. The relevant portion of this statute is:

§ 38-33.3-209.5. Responsible governance policies:

  1. To promote responsible governance, associations shall:
    (b) Adopt policies, procedures, and rules and regulations concerning:

(II) Handling of conflicts of interest involving board members, which policies, procedures, and rules and regulations must include, at a minimum, the criteria described in subsection (4) of this section;

(4)(a) The policies, procedures, and rules and regulations adopted by an association under Subparagraph (II) of paragraph (b) of subsection (1) of this section must, at a minimum:

(I) Define or describe the circumstances under which a conflict of interest exists;
(II) Set forth procedures to follow when a conflict of interest exists, including how, and to whom, the conflict of interest must be disclosed and whether a board member must recuse himself or herself from discussing or voting on the issue; and
(III) Provide for the periodic review of the association's conflict of interest policies, procedures, and rules and regulations.

There are many areas where executive board conflicts of interest may arise, including: business transactions; vendor contracts; elections and voting; association and board member expenses; employment matters; rule-making for personal interests; investments and finances; disclosures; and enforcement matters to name a few.

Board members have a fiduciary responsibility to the owners that they represent in the community, and they have an obligation to act for and in the best interests of the community – and not in their own self-interests. Establishing board conflict of interest policies can go a long way in assisting board members with their decision-making process and create better transparency of those decisions to the community.

 

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1560 Broadway, Suite 925, Denver, CO 80202 Email
(303) 894-2166 / (303) 894-2185 - Phone (303) 894-2683 - Fax