The Award of Attorney Fees in The Post SB 100 & SB 89 Courtroom
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.
SB 100 and SB 89 did amend the attorney fee provision in section 123. However, these amendments were enacted to protect homeowners from paying attorney fees when it would be unjust and unfair for them do to so. The amendments did not extend the scope of actions that allow for attorney fees under this section.
Prior to SB 100, section 123 (which already applied to both pre and post-CCIOA communities) provided that "in any legal proceeding to enforce the provisions of [CCIOA] or of the declaration, bylaws, articles, or rules and regulations," the court shall award reasonable attorney fees and costs incurred in asserting or defending the claim to the prevailing party. Current law provides that "in any civil action to enforce or defend the provisions of [CCIOA] or of the declaration, bylaws, articles, or rules and regulations" the court shall award the reasonable attorney fees and costs of collection to the prevailing party. This section applies regardless of whether the association or the owner initiated the lawsuit.
Basically, if the parties were in court before SB 100 and SB 89 to enforce 1) a provision of CCIOA; 2) a provision of the association's declaration; 3) an association bylaw; 4) a provision of the association's articles; and/or 5) an association rule or regulation, the law provided for attorney fees to be awarded to the party who prevailed in court. Neither SB 100 nor SB 89 has added anything to this list.
Chances are that it is more difficult for associations to comply with CCIOA as they learn its new requirements. Fortunately, there are resources out there, including this comprehensive outline - SB 100 & SB 89: What They State and How To Comply. As challenging (and, let's be honest, annoying) as it may be to learn the new law, it may help to realize that state regulation of associations is a nationwide trend that Colorado associations had eluded for quite some time.