Case Law 2020 Update

Aaron Goodlock – December 29, 2020

2020 CASE LAW UPDATE The following is a brief summary of 2020 state legislation and case law updates regarding Colorado common interest communities. It also includes changes in HUD regulations affecting community associations.

2020 was a relatively quiet year for community associations from a legislative perspective. At the state level, numerous bills were introduced, but very few passed. Of course, like many other states, the Colorado legislative session was cut short due to COVID-19. Political agendas focused heavily on providing emergency social, economic and financial support to constituents. Significant attention was also shifted to the national election.

Below is short summary of 2020 state legislation affecting common interest communities:

House Bill 1155 – Higher Efficiency New Construction Residences.

House Bill 20-1155 provides more energy efficiency options for home buyers by requiring developers/builders to offer renewable energy systems on newly constructed homes. Specifically, HB 20-1155 requires builders to offer buyers options for installing

  1. a solar panel system, solar thermal system, or both;
  2. pre-wiring or pre-plumbing for a solar system; and
  3. a chase or conduit for future installation of a solar system. The bill also requires home builders to offer to install electric vehicle (EV) charging systems, pre-wiring for EV charging systems, and pre-wiring for energy-efficient heating systems, including electric water heaters, electric boilers, and electric furnaces or heat-pump systems. The requirements of HB 2-1155 do not apply to manufactured/mobile homes.

House Bill 1200 – Continuation of the HOA Information and Resource Center and Religious Expression.

The Colorado HOA Information and Resource Center, part of the Division of Real Estate, was scheduled to sunset on September 1, 2020. House Bill 20-1200 continues the operation of the HOA Information Office until September 1, 2025. The bill does not include an expansion of the HOA Information and Resource Center’s regulatory authority. Nor does it provide for a separate dispute resolution forum for homeowners, as was initially proposed. Another component of HB 1200 protects the rights of owners to display religious symbols on unit doors and entryways under the public policy provisions of the Colorado Common Interest Ownership Act (CCIOA), C.R.S. § 38-33.3-106.5.

House Bill 1332 – Prohibits Housing Discrimination based upon Source of Income.

House Bill 1332 amends the existing Colorado fair housing statutes by adding an additional protected class, and prohibits housing discrimination based upon a person’s source of income, including income derived from government or privately-sponsored housing assistance programs.

Senate Bill 126 – Home Child Care in Homeowners’ Association Communities.

Senate Bill 126 prohibits the enforcement of any covenant, condition, restriction, rule or regulation that would otherwise prohibit the operation of a licensed family child care home (i.e., day care) within a common interest community. Provided, however, that community associations may impose reasonable insurance requirements, such as requiring the owner or operator of the facility to carry reasonable liability insurance, naming the association as an additional insured on the owners’/operators’ liability insurance policy, and requiring that such insurance must be primary to any insurance that the association separately maintains.

There were also several published appellate court decisions impacting common interest communities:

Brooktree Village Homeowners Association, Inc. v. Brooktree Village, LLC.

In a construction defect lawsuit, the Colorado Court of Appeals held that homeowners associations have the right to assert implied warranty claims against developers and builders on behalf of the members without having to the obtain assignment of claims from the homeowners.

Kroesen v. Shenandoah Homeowners Association, Inc.

The requirements for creating an easement are satisfied if a legally sufficient description of the easement appears in the declaration or plat. CCIOA does not require duplicative language in every plat amending the declaration. Additionally, unlike the requirements for maps set forth in CCIOA, descriptions of easements need only be “legally sufficient”.

Woodbridge Condominium Association, Inc. v. Lo Viento Blanco, LLC.

This case stemmed from a property ownership and use dispute involving a condominium community near Aspen/Snowmass. Following an initial trial and a series of appeals, the Colorado Court of Appeals ultimately held that a party claiming a prescriptive easement must show a “nonpermissive or otherwise unauthorized use of a property that interfere[s] with the owner’s property interests.” A claimants’ acknowledgement of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. A prescriptive easement claimant that shows its use of the property was open and notorious for the statutory period is entitled to a presumption that its use was adverse. Certiorari has been granted by the Colorado Supreme Court for further review.

At the federal level, in January 2020 the U.S. Department of Housing and Urban Development (HUD) issued additional guidance to housing providers (which includes condominiums and HOAs) regarding the evaluation of assistance animal requests (e.g., service animals and support animals) as reasonable accommodations under the Federal Fair Housing Act. The new guidance replaces and supersedes previous guidance issued in 2013.

The new 2020 HUD guidance addresses

  1. the type and amount of documentation housing providers may request in support of reasonable accommodation requests for assistance animals. This includes verification of an individual’s disability or disability-related need for an assistance animal.
  2. criteria for assessing and handling requests for “unique animals” other than commonly kept household pets.

This latest HUD guidance includes recommendations and best practices regarding:

  • evaluating documentation obtained from the internet by individuals making reasonable accommodation requests
  • assessing the disability-related need for assistance animals
  • considerations/guidelines for determining what constitutes a “reasonable” accommodation
  • when accommodation requests can potentially be denied.

According to HUD, documentation obtained from the internet regarding an individual’s disability or the requested accommodation may not be, by itself, sufficient to establish that a person has a disability or disability-related need for an assistance animal. Similarly, when an individual requests to keep a unique animal other than a common household pet, HUD provides that the person making the request “has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.”

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