The following questions and answers are intended to provide education and awareness, on issues of legal significance to Colorado Owner Associations. Legal advice is not being provided. Legal advice is dependent on the governing documents for each Community, the facts and circumstances and application of the law to the governing documents. For legal advice, Associations should contact the Association’s attorney.
- At what point does a homeowner complaint or violation become a matter for the police?
If a complaint regards a crime, or is a matter of life or limb, it is certainly a matter for the police rather than the Association. Depending on the nature of the complaint, it may also be appropriate to notify the Association as well. However, many complaints may fall under issues that both the Association and the police may address. For instance, the police are better able to address noise complaints immediately (i.e. those late night parties) and may be better-equipped to deal with owner-to-owner disputes and/or harassment issues. The police do not have the authority to enforce the Association’s use restrictions or rules, but many “nuisance” violations, such as excessive noise, also violate local ordinances. As a result, if a complaint involves behavior that violates local laws, the complaining owner always has the option of calling the police. If the complaint solely involves a covenant or rule violation, the police should not be called.
- What authority does an Association have concerning unsupervised children?
Not much! Fair housing laws prohibit discrimination based on familial status and rules singling out children or requiring that children be treated differently than adults are generally against the law. However, the Association may adopt rules based on age if there is a recognized, legitimate safety concern involved. The agencies which enforce fair housing laws do not recognize many “safety concerns” as being legitimate. Accordingly, the Association can adopt certain age restrictions with respect to supervision at the pool, hot tub, and possibly even the weight room, but rules requiring supervision in other areas will likely be suspect and a violation of fair housing laws.
- Can an Association require homeowners to run criminal checks on renters?
First, the documents for the community should be checked and the Association should consult with its attorney. Although the Association may have the authority to require homeowners to run a criminal (and/or credit) check on renters, it may not be advisable and may not have the intended effect. The Association cannot prohibit an owner from renting to someone with a criminal record, or to someone with poor credit, so requiring these checks or reports may result in a false sense of security and additional liability to the Association. Also, if the Association requires the owner to provide a copy of a credit check, it should remain confidential. Criminal background checks are not required to remain confidential. Any rules should include these limitations on the use of the check/report and disclaim any expectations other residents may have.
- Can an Association remove or force a resident to remove a pet from the property?
Some declarations give the Association the express authority to require the removal of a pet that is a nuisance or that otherwise is in violation of the covenants or rules. If your declaration does not give the Association that authority, and the owner/pet continuously is in violation of the covenants or rules, you may be able to get a court order requiring the removal of the pet if the owner continues to be in violation. This is a longer process and requires patience. Also, keep in mind that most cities and counties have animal ordinances and some relief may be available through local animal control.
- When can a vehicle be towed without advance notice?
Check local ordinances for notice requirements prior to towing. However, in general, a vehicle can be towed without notice if it is in a fire lane or obstructing access. It can also be towed without notice if it is parked in someone else’s designated parking space without permission.
- When and under what circumstances can the Association enter a unit?
First, check your documents. Typically, the Association has an easement to enter a condominium unit immediately without notice in the event of an emergency. The Association also usually has an easement to enter a condominium unit after reasonable notice to perform any of its obligations under the Declaration, such as maintenance of the Common Elements.
- Is the Association responsible to enforce Fire or Zoning codes (i.e. Grills on balconies or next to buildings, or smoking regulations)?
In general, the Association is not responsible for enforcing local codes, just like the local government is not responsible for enforcing the private covenants and rules. However, some ordinances or laws do require action by the Association because they affect the operation of Common Elements or Common Area for which the Association is responsible. For instance, the Colorado Clean Indoor Air Act has implications for associations because it involves the use of Common Elements and Common Area.
- When can the Association abate a violation? What if it involves removing personal property? What if it involves billing back labor costs?
The Association should be very careful about abating a violation itself or using so called “self help.” The Association should consider the circumstances of each situation before taking action and consult with its attorneys. First, does the Association have the authority in the governing documents to exercise self-help? Second, is the violation occurring on a Lot or Limited Common Element or in a condominium unit or on Common Area or General Common Elements and does it involve a trespass? Third, could self-help involve damage to property or injury to a person? Finally, does the Association have the authority in the governing documents to charge the cost of the self-help to the owner?
- If an owner makes a costly improvement that is outside the design guidelines, what can the Association do to force compliance?
As soon as the Association becomes aware that an owner is making an improvement without approval or in violation, it should notify the owner and request/demand that all further work cease until the owner applies and receives approval for the changes. The Association may also seek a restraining order in order to prevent completion while the matter is resolved. The sooner the Association takes action, the more likely a court is to require the owner to bring even a completed improvement into compliance. Check the documents for more restrictions and be aware of the one year statute of limitations that may apply.
- When should an Association make exceptions to enforcing design guidelines?
One of the Association’s responsibilities is to enforce covenants and design guidelines uniformly and consistently. However, there are times when the Association will have to make or should make an exception. Sometimes, enforcement will result in a hardship or practical difficulty and a variance is appropriate. Other times, the Association may be required to allow a reasonable modification to the design guidelines because of a disability. Finally, upon review of a particular situation, legal counsel may recommend against enforcement because of the facts of the case and the likelihood that the Association will not succeed. Anytime the Association determines against enforcement in a particular case, the circumstances of that decision should be carefully documented in order to distinguish them from future enforcement issues.
- What criteria should an Association use for establishing age limits for unsupervised pool use?
As stated above, an Association may adopt age restrictions for unsupervised pool use because it involves a recognized legitimate safety concern. Although the Department of Housing and Urban Development and the Colorado Civil Rights Division have not provided written guidelines for such age limits, requiring children under 14 to be supervised at the pool is generally accepted and has, so far, been acceptable to those agencies.
- What liability is an Association exposed to when homeowners do not make needed repairs to limited common elements (i.e. broken windows or unstable balconies)?
The Association should first verify that the owner and not the Association is responsible for such repairs, replacements and/or improvements. The Association’s overall purpose is to protect and enhance property values and maintenance, repair, replacement and improvement is an important part of achieving that purpose. As a result, the Association may have liability for reduced property values if there is a failure to maintain, repair, replace or improve. In addition, a failure to make a repair which results in an unstable balcony could cause serious injury to people, including other residents or guests. In this case, the Association will most likely have a claim made against it for failure to enforce the maintenance requirements. In order to limit the Association’s exposure to any liability, the Association must recognize its duty and discharge that duty in a reasonable manner. In this situation, that means taking reasonable steps to enforce maintenance requirements.