HOA Legi-Slate

We often hear stories of well-meaning association boards that make the decision to withhold due to "privacy concerns" certain association records from an owner requesting them. The decisions to withhold certain association records are explained along the lines that it would be an invasion of privacy:

• to release the names and addresses of other association members;
• to provide a list of owners delinquent in their assessments;
• to let an owner inspect covenant complaints filed by or against other owners, etc.

However, none of the above reasons are valid ones for refusing an owner request to inspect and copy such association records.

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As discussed in this post, Colorado does not have a state regulatory or enforcement agency to monitor association compliance with CCIOA. Much of CCIOA's enforcement power comes from section 38-33.3-123, which provides for the mandatory award of attorney fees to the prevailing party in actions to enforce its provisions. We have heard concerns that SB 100 and SB 89 broadened the types of actions for which attorney fees are awarded. This understandable concern is actually unfounded.

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SB 89 amended the disclosures that sellers of residential property located in a common interest community are required to make. These required disclosures are addressed outside of the Colorado Common Interest Ownership Act ("CCIOA") in section 38-35.7-102 of Colorado's statutes. This post addresses what associations may charge for providing association documents to either the seller or, at the seller's authorization, to the buyer in conjunction with the sale of a unit within a common interest community.

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With Governor Owens's signature, Senate Bill 89, the "SB 100 Clean-up Bill," is now law. SB 89 addresses many parts of SB 100 that needed clarification due to ambiguous or conflicting language. In addition, SB 89 modifies some of the requirements implemented by SB 100 that failed to consider the actual manner in which associations operate or had unintended consequences. With the exception of two provisions (the adoption of a dispute resolution policy and a portion of the seller disclosure section), SB 89 is effective on the Governor's signature, May 26, 2006. (Click here for a copy of the new law.)

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The Denver Post reports that the Colorado lawmakers finished the four month session late Monday night. SB 89 took almost the entire four months to travel through the legislature, but is now on the way to Governor Owens. (Click here for the version, although not yet in the final format, that Governor Owens will consider.) Unlike the Florida legislature, SB 89 was the lone bill dedicated solely to HOAs and, if passed, will bring welcome clean-up amendments to SB 100. (The status of the other bills introduced that will have impact on HOAs will be summarized in upcoming post.)

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This afternoon, Senator Hagedorn requested that the Senate recede from its position, dissolve the conference committee, and concur with the House amendments to SB 89. (Click here for the post discussing the request for a conference committee.) He explained that despite best efforts a resolution could not be reached concerning the exemption of mixed use communities from the 67% cap on the percentage of affirmative votes needed to amend a declaration. (Although phased communities and declarant-controlled communities are exempted from this cap by SB 89, mixed use communities are not.) He further explained that despite the inability to reach a resolution the interested parties were willing to withdraw, with the understanding that they would bring a bill addressing this issue next session. SB 89 was then adopted by the Senate, 35-0, and will now be sent to Governor Owens for consideration.

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As discussed in this post, a conference committee had been requested to address some outstanding issues remaining in SB 89. However, it appears that these issues have been resolved without the need to amend the bill further. It is expected that the conference committee will be dissolved and the Senate to concur with the House amendments at some time today. At this point, the bill will be sent to Governor Owens for consideration.

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This morning, Senator Hagedorn requested that SB 89 be sent to conference committee. (A conference committee is made up of members from both houses, who try to work out outstanding issues left in the bill that were not resolved in committee or by a floor amendment.) He cited the reason for his request as issues brought up by Colorado Ski Country USA, the trade association for Colorado's ski resorts, and the National Association of Industrial and Office Properties ("NAIOP").

We understand these issues concern the amendments made in the House to section 38-33.3-217 as it was amended in the Senate. The Senate version of this provision would have exempted declarant-controlled, phased communities, and mixed-use communities from the 67% cap on the percentage of affirmative votes that may be required to amend an association declaration. Representative Carroll was concerned that these proposed exemptions were too broad and put a lot of effort into compromising with the interested parties. Currently, Section 217 proposes to exempt both declarant and phased-communities. (A phased community is defined as a community in which the developer retains development rights.) It is our understanding that she remains opposed to reverting back to the Senate version of the section.

We'll update you on the conference committee events as they transpire.

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Late yesterday afternoon, SB 89 passed its final reading in the House with a 64-1 vote. (The no vote came from Representative McCluskey). SB 89 will now return to the Senate where the Senate will either accept the House amendments or call for a conference committee to reconcile the two versions. We expect this to happen in the next few days. Click here for the most current version of SB 89. (This is the "rerevised" version, which contains all the amendments adopted by the House.)

Both this post and this post discuss the contents of the rerevised SB 89.

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SB 89 passed its second reading in the Colorado House of Representatives this afternoon. In addition to the Local Government Committee report (discussed here), Representative Carroll introduced two floor amendments, both of which were adopted.

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Click here to view the unofficial preamended version of SB 89, which has been posted on the General Assembly website. This version includes all the Local Government committee amendments that were approved at the hearing on April 11, but have not yet been adopted by the whole House of Representatives on Second Reading. We expect that Second Reading will take place by the end of this week. Click here for the blog post that summarizes these amendments.

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SB 89 will have its second reading next week. While the bill as a whole will benefit owners and associations by cleaning up and clarifying portions of SB 05-100, a hostile amendment was secured during the Local Government Committee hearing. This amendment would allow planned communities, regardless of their size or date of creation, to amend their declarations to exempt out of CCIOA. (Click here for more details.)

Please contact your representative by Monday, April 17 to request his or her support for SB 89 and to oppose the hostile 'carve out' amendment adopted in committee. You can find your representative by visiting Project Vote-Smart and entering your nine-digit zip code.

Posted By HindmanSanchez In Colorado Condominium Association Law , Colorado Homeowner Association Law , Senate Bill 06-089: The SB 100 Clean-Up Bill 0 Comments Permalink

Yesterday afternoon, the House Local Government heard SB 89. At the committee hearing, Representative Carroll introduced a strike below amendment for the Committee's consideration. (Instead of introducing amendments one by one, a strike below amendment strikes everything below the enacting clause, replacing it with the language of the strike below amendment.)

The strike below incorporates much of the reengrossed version of SB 89. Here is a break down on the pertinent provisions contained in the strike below (I have italicized the portions of the amendment that differ from the reengrossed version):

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The House Local Government Committee hearing on SB 89 has been moved to Tuesday, April 11. The Local Government Committee meetings begin at 1:30 p.m. We'll keep you posted as developments arise. (SB 89 is discussed in detail in this post.)

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SB 89 and SB 185 are scheduled to be heard by the House Local Government Committee on Tuesday, April 4. (The provisions of SB 89 are discussed here, and SB 185 is covered in this post.) The Committee meeting begins at 1:30 p.m. in House Hearing Room 0112. (A list of Committee members is available in this post.) SB 89 and SB 185 are fourth and fifth on the agenda, but bills may always be heard out of order. The House calendar provides that any bills not heard or completed on April 4th will be scheduled to be heard and completed on Friday, April 7th, time to be determined if such a meeting becomes necessary. We'll keep you posted on any developments.

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Originally set to be heard March 21 by the House Local Government Committee, SB 89 was taken off the calendar to be heard another day. As of today, the bill has not yet been re-scheduled. However, the committee will not be meeting next Tuesday, March 28th, so the earliest SB 89 will be heard will be Tuesday, April 4. We'll keep you posted as to when SB 89 finds its way back on the calendar.

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On March 2, Representative Stengel, facing an ethics investigation over his off-session pay, stepped down from his position as house minority leader. Following Representative Stengel's resignation from the position, Republicans elected Representative May as their new house minority leader. House Minority Leader May has taken himself off the House Local Government Committee and has appointed Representative Stengel to take his place. Click here for an updated list of the members of the House Local Government Committee.

Posted By HindmanSanchez In Colorado Condominium Association Law , Colorado Homeowner Association Law , Senate Bill 06-089: The SB 100 Clean-Up Bill 0 Comments Permalink

The House Local Government Committee hearing on SB 89 is scheduled for Tuesday, March 21 at 1:30 p.m. Click here for a list of the members of the Local Government Committee.

Interested citizens may testify to their views on the current version of SB 89 at this hearing. (Click here for tips on testifying in front of committee.) Like the Senate Judiciary Committee, during this hearing, the Committee will examine the details of SB 89 and determine what action to take on the bill.

Posted By HindmanSanchez In Colorado Condominium Association Law , Colorado Homeowner Association Law , Senate Bill 06-089: The SB 100 Clean-Up Bill 0 Comments Permalink

SB 89 has now been introduced in the House and has been assigned to the Local Government Committee. As of today, it has not yet been calendared for a hearing, but we'll let you know when it is scheduled.

The 11 members of the Local Government committee are as follows:

Representative Mary Hodge (Chairman) (D)
Phone:
mary.hodge.house@state.co.us

Posted By HindmanSanchez In Colorado Condominium Association Law , Colorado Homeowner Association Law , Senate Bill 06-089: The SB 100 Clean-Up Bill 0 Comments Permalink

For your convenience, here is a quick run-down on the substantive provisions of the reengrossed version of SB 89. (A "reengrossed" bill includes all the amendments adopted in the house of introduction.) This version is what will be introduced in the House by Representative Carroll. (Click here for a copy of the bill.)

Definitions

• Adds the definition of "mixed-use development" and "phased community" to CCIOA's definition section [38-33.3-103]

Political Signs

• Requires association regulations on the display of political signs to allow at least one political sign per political office or ballot issue with maximum dimensions limited to the lesser of 1) the maximum size allowed by any applicable local ordinance or 2) 36 inches by 48 inches. [amendment italicized] [38-33.3-106.5(1)(c)]

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This morning SB 89 passed its third reading in the Senate 35-0 with Senators Williams and Senator McElhany as co-sponsors and is now headed to the Colorado House of Representatives for consideration. (Click here for the "reengrossed" version of the bill - this version includes all amendments adopted by the Senate.) In the House, its House sponsor - Representative Carroll - will introduce the bill. Immediately after introduction, the Speaker of the House, Andrew Romanoff, will assign it to a committee of reference. Like the Senate Judiciary Committee, this committee will take public testimony on SB 89 and closely analyze its provisions. We will keep you posted on when SB 89 is introduced in the House and to what committee it is assigned.

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It's not too late to contact your Senator in support of SB 89, the SB 100 Clean-up Bill, as it was laid over for second reading until tomorrow. (Click here for a copy of the preamended version of the bill - this is the "unofficial" version, which incorporates the Judiciary Committee's proposed amendments. Click here to view those amendments separately.) We'll let you know what happens once second reading takes place.

(If you are not sure who your Senator is, click here.)

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SB 89 (the SB 100 Clean-Up bill) will be heard on second reading as early as Monday, February 27. Contact your Senator by Monday morning, February 27th to urge them to support this bill in its current form. (Visit www.vote-smart.org to determine who your Senator is.) This bill will serve to alleviate much of the confusion and difficulty associations are experiencing in implementing several of SB 100's provisions. It is imperative that our Senators hear that this bill is important to the vitality and health of Colorado's homeowner associations and will benefit both homeowners and associations.

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This afternoon, the Senate Judiciary Committee took action on SB 89, moving the bill out of committee for its second reading on the Senate floor. This version differs from the introduced bill as the Committee adopted seven amendments presented by Senator Hagedorn.

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Due to scheduling conflicts, SB 89 will not be heard until Monday, February 20th at 1:30 p.m. It is imperative that you contact the Judiciary Committee Members - as well as your Representatives - to support this bill. Our legislators need to hear from you directly that you support the passage of SB 89 (and they have been hearing plenty from those who oppose the bill.) Hearing from their constituents really makes a difference to our representatives at the Capitol.

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The Senate Judiciary Committee laid over action on SB 89 until Monday, February 13th at 1:30 p.m when the Committee reconvenes. This decision was made in response to Senator Gordon's request that he would like more time to review SB 89's proposed amendments.

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Yesterday, the Senate Judiciary Committee heard testimony on SB 89. (This post discusses the bill's contents.) Action on the bill was delayed until tomorrow - Wednesday, February 8 at 1:30. During the public testimony, the Committee heard from a handful of individuals that strenuously opposed the bill.

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SB 06-89, the clean-up bill for SB 100, will be heard by the Senate Judiciary Committee on Monday, February 6, at 1:30 pm. As with most legislation, SB 89 is a result of compromises and a balancing of interests involved. We believe that although SB 89 is not perfect (but what is?), it does a reasonable and fair job of addressing many of SB 100's problem areas. (SB 89's provisions are discussed in this post.)

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The Senate Judiciary Committee hearing on SB 06-089 is scheduled on the Senate Calendar for February 6, 2006, at 1:30 p.m. (Hearings are subject to changes in dates and times, so we'll let you know if the date changes.)

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We have heard many opinions on SB 100's requirement that all board member elections be conducted by secret ballot. Some believe such a requirement does not mesh with actual association election practices, while others contend that such a requirement is a necessity for fair elections. The newly introduced SB 100 clean-up bill Senate Bill 06-089 proposes a different approach.

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We often hear the lament that homeowners did not know the insurance carried by their homeowner associations does not cover personal items like furniture, art work, rugs, upgraded light fixtures, etc. When disaster has struck, these homeowners have found themselves without adequate insurance. An additional problem arises when it is unclear which insurance covers the damage - the association's or the owner's? Owners have been left with flooded condominiums or townhomes after their homeowner insurance has declined to pay on the grounds that the damage is covered under the association policy, not the owner's, and the association refuses to submit a claim, arguing just the opposite. SB 06-089 contains proposed amendments to two sections that would further assist associations and homeowners in understanding and exercising their respective rights and responsibilities in relation to insurance coverage.

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This afternoon, Senator Hagedorn introduced the anticipated SB 100 Cleanup Bill. Entitled "HOA Cleanup Legislation," Senate Bill 06-089 looks much like we anticipated and outlined in this post with a few additional proposed amendments. SB 06-089 has been assigned to its "committee of reference," the Senate Judiciary Committee, where it will be analyzed closely. We will be carefully tracking any changes or amendments to this bill, keeping you posted as they happen. Click here for the text of the bill.

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In the last few months, Senator Hagedorn and Representative Carroll have been meeting with concerned parties, including HindmanSanchez, to discuss the SB 100 Clean-Up Bill. HindmanSanchez's participation included meeting with both Senator Hagedorn and Representative Carroll and providing them with suggested amendments, many of which are reflected in the bulleted list below. We now have an idea of how the bill is shaping up. Although it is too early to tell what exactly will be in this bill, at this time, we anticipate the following:

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