Untimely Notice: Notice Delays Outside the Board’s Control

Community associations often have strict notice requirements and timelines required by the governing documents or Colorado law. If electronic notice is permitted, associations can frequently rely on electronic timestamps as proof of notice. However, when notice is required by mail, the postmark may be used as evidence of the transmitted date. Bearing this in mind, Board members and managers should be aware of recent changes to USPS timelines to ensure the notice is sent timely.

No Guarantees

When mail is sent via USPS first-class mail, the USPS postmarks the mail with the processing date. Due to possible delays in collections or processing, this processing date may be different than the date the Board member or manager physically placed the notice in the mail.

Most processed mail travels through automated sorting machines, which apply postmarks during high-speed sorting. The USPS recently issued a statement that it does not guarantee a postmark on the same day the mail was dropped in a collection box.

This delay between mail drop-off and postmarking may cause the notice to be late, leading to unintended consequences for the association.

What are other options?

• Send your notices early! This could mean several days to weeks before the deadline. Mailing the notice early reduces the risk of processing and postmark delays.

• Certificate of Mailing. Board members and managers may choose to fill out a Certificate of Mailing. A Certificate of Mailing is a form that provides evidence that the party sent an item when they said they did. This certificate of mailing becomes a record of the Association. It does not provide proof of delivery or insure items against loss. However, it can be a useful practice, particularly if there is a dispute about the about the timelines of a particular notice.

• Alternative USPS options. Certified mail is the safest approach to sending via USPS because the USPS scans and dates the mail when presented to the USPS employee. Certified mail provides proof of mailing and proof of delivery.

Hand-canceled mail is another option. Hand-canceled mail is mail that a USPS employee marks by hand rather than through sorting machines. Both certified mail and hand-canceled mail ensure the USPS employee postmarks the mail on a specific date.

• Use a different delivery service. Consider using an alternative private carrier. These services provide clear shipping dates and tracking information. Examples of delivery services may include DHL, FedEx, or UPS services that postmark the notice when the mail is presented.

What are the consequences of late notice?

If a Board member or manager fails to provide timely notice, associations may be forced to cancel meetings, votes, etc., and start the processes over. For example, if an association fails to provide timely notice to a homeowner for a covenant violation, the association may have to re-initiate the enforcement process or, if too much time has passed, the enforcement actions may be barred by the Statute of Limitations. Additionally, if an association fails to send timely meeting notice, it could result in challenges to actions taken at the meeting.

For more information and Frequently Asked Questions, see the USPS site here: https://about.usps.com/newsroom/statements/010226-postmarking-myths-and-facts.htm