HOA Legi-Slate

A homeowner living in a community association in Pitkin County is passionate about cutting his consumption of fossil fuels.  As a result, he has been going through the approval process with his association to install solar panels on the roof of his house which will provide energy to heat his home and water.  He is also planning to install a photovoltaic system in his yard that will consist of four free-standing poles with 12 solar panels.   This system will be used to power his house, studio and apartment.  The Aspen Times has reported the homeowner was granted a variance to install poles over the 10-foot limit and the County Commissioners will debate whether to permanently boost the overall height limitation from 10 to 16 feet. 

Posted By Molly Foley-Healy In Community Associations Miscellaneous 0 Comments Permalink

The Protecting Tenants at Foreclosure Act, which went into effect on May 20, 2009, was designed to provide protections for tenants in the event of foreclosure. In the past, tenants had little or no right to retain their lease when their landlord lost the unit through foreclosure. The new law affords a greater notice period for eviction (increased to 90 days) and allows renters to stay for the remaining term of their lease except in the event that the new title holder intends to occupy the unit as a primary residence.

How does this effect community Associations? For one thing, it makes the collection remedy of receivership less risky than it has previously been. In the past, there was always a substantial risk that costs would be expended to get a receiver appointed, find a renter, and enter into a lease only to have that lease terminated prematurely by a foreclosure. Often the time frames proved too limiting to guaranty the Association would recoup its delinquent assessments and costs. Under the new law, in most cases where a bank forecloses, that tenant will be allowed to remain in the Unit until the lease term naturally expires. The receiver must enter into a valid lease with a tenant for a fair market rent. And if possible the receiver will want to try to enter into a lease term long enough to be sure the association recoups all or a majority of its delinquent assessments and costs. 

Contact the knowledgeable collection attorneys at HindmanSanchez, P.C. for more information on receiverships.

Posted By Eric R. McLennan In Community Associations Miscellaneous 0 Comments Permalink

The FHA announced yesterday that it is once again delaying the implementation of the requirements found in Mortgagee Letter 2009-19 until December 7, 2009.  As we posted previously, these new guidelines for condominium projects are likely to have a significant impact on condominium communities.  FHA has indicated that revisions to the 2009-19 Letter will be forthcoming in the next two weeks and will offer leniencies because of current market conditions and provide clarification to some of the proposed new provisions.   We will continue to monitor these new requirements.

Posted By Loura K. Sanchez In Community Associations Miscellaneous 0 Comments Permalink

The Colorado Supreme Court recently issued a ruling in B.B. & C. Partnership v. Edelweiss Condominium Association, holding that a party taking title to real property through adverse possession cannot do so free and clear of the restrictions in a recorded condominium declaration. The party at issue was an original member of BB&C, the declarant, and thereafter the association's managing agent for 20 years. BB&C acquired title to an association parking space by adverse possession, and then tried to resell the space to a third party, non-owner, free and clear of the terms of the declaration. The Supreme Court held that any title obtained by BB&C through adverse possession would be subject to the terms of the association's declaration. In this case, the declaration prevented the sale of a common element parking space to a non-condominium owner.

This is important because with the increase in owners taking title following a foreclosure or quiet title lawsuit, associations should be diligent in informing new owners that along with ownership comes obligations and responsibilities as set forth in the association's governing documents.

Posted By Jonah G. Hunt In Foreclosures 0 Comments Permalink

A gated community in Florida with a 33% delinquency rate is getting tough on homeowners who don't pay their assessments.  The community is installing a transponder system that will make it inconvenient for delinquent homeowners and their guests to reach their homes.  The new system will allow the association to delete, suspend, or assign access times through security gates into the community.  While we don't recommend that associations in Colorado prohibit access and parking for homeowners, there's nothing in the law that prohibits associations from making access inconvenient. 

Posted By Molly Foley-Healy In Colorado Homeowner Association Law 0 Comments Permalink

Recently, the Virginia-Pilot reported that Catherine Johnston may lose her home because the three decade old condominium association she lives in failed to plan for a major structural repair project which can no longer be put off.  Since the association is unable to obtain a loan to cover the costs, the $2 million dollar tab for the project is being financed by a special assessment of $12,000 to $15,000 per unit and homeowners have 3 months to start making payments.  Ms. Johnston, who is currently unemployed, is unable to pay the special assessment. 

Unfortunately, this is not an isolated example of what can happen when associations fail to plan for future repair and replacement projects.  In fact, we are seeing similar scenarios being played out in Colorado.  Here are the lessons board members and homeowners can learn from this situation: 

Lessons for Board Members:

1. While proposing small incremental increases to regular assessments in order to fund reserves may not be a popular thing to do - failure to do so may result in a major financial hardship for homeowners when significant repair and replacement projects can no longer be put off.  
2.  A thorough understanding of the budget of your association is a must.
3. The necessity of having a reserve study conducted, which should include a recommended funding plan, cannot be overstated.  In fact, HB 1359 requires associations to have a Reserve Policy which must include when the association will have a reserve study conducted and whether the study will be based upon a physical and financial analysis. 
4. Boards must make informed and conscientious choices about reserving and investing.  This information should also be part of your Reserve Policy.  

 Lessons for Homeowners:

1. Review and understand the budget of your association.  This should include a review of whether, and to what extent, your association is contributing to a reserve fund for future repair and replacement obligations.
2. Get involved in your association.  Ask questions about what your association is doing to plan for future repair and replacement obligations.  Offer to assist the association with researching and crafting positive solutions.
3. Do not assume your association is contributing to reserves on an annual basis or has a funding plan in place.  Instead, take the steps necessary to become an informed homeowner. 

To learn more about what your association must do to comply with the HB 1359 reserve policy requirement, please review our May 22nd entry on HOA Legi-Slate.

Posted By Molly Foley-Healy In National News 0 Comments Permalink

Generally the public accommodation portions of the ADA do not apply to associations.  However, if your association employs over 15 individuals, the employment provisions of the ADA do apply.  The EEOC has announced proposed rule making which will cover the employment provisions of the ADA.  The rule making  addresses the definition of a "disability" which has become very blurry given the Supreme Court decisions, the ADA Amendments Act, and the Rehabilitation Act.  You can read a Q&A of the proposed rule making and provide comments for 60 days.

Posted By Loura K. Sanchez In Colorado Homeowner Association Law 0 Comments Permalink

Mortgagee Letter 2009-19, issued by the FHA, outlines the new approval process for condominium projects and provides guidance to lenders for determining project eligibility.  This new process was set to begin October 1, 2009, but has been delayed.  It will now be effective for cases submitted beginning November 2, 2009. 

Posted By Loura K. Sanchez In Community Associations Miscellaneous 0 Comments Permalink

A homeowners association in Colorado Springs is installing "Project Approved" signs in the front yards of approved construction projects.  The sign goes up as soon as the project starts, and is taken down upon completion.  The idea is to reduce calls on whether a construction project is approved and reduce the problem of people constructing without approval.  "If folks get used to seeing the signs, they’ll immediately know when they see illegal construction.  No sign?  No HOA approval."  See http://www.gazette.com/news/hoa-61463-maybe-calls.html  
 
What do you think? Good idea? Will this help your association crack down on unapproved installations?

Posted By Melissa M. Garcia In Community Associations Miscellaneous 5 Comments Permalink

As we posted in July, Senate Bill 09-87 becomes effective September 1, 2009.  This bill  requires special districts to prepare annual disclosures of certain information to every elector of the district.  A change to this requirement has been made which now calls for all posted notices of regular and special meetings of a special district to be posted a FULL 72 hours before the meeting time.  The prior version of the statute required notices to be posted "at least three days prior to" a meeting.  Recent cases have made it clear that courts look very closely at the technical aspects of special district meetings so following the law carefully is very important.

Posted By Loura K. Sanchez In Current Year Legislation 0 Comments Permalink