As the United States and the world in general face unchartered territory due to COVID-19, common interest communities around the country are also trying to figure out what they can do, what they can’t do, and what they should do.
To assist you with trying to figure all this out and making decisions on how your community should move forward with business, below is a compilation of prior FAQs, and a few new ones, that may help.
1. Can we cancel the annual meeting?
Annual meetings are required under CCIOA, at C.R.S. §38-33.3-308(1). So if you have an annual meeting in the near future and want to cancel it for the year due to coronavirus concerns, the answer is no. You might consider postponing your meeting to a later date, depending on whether the agenda items are critical or not, in which case you will still need to provide proper notice for the rescheduled meeting per your Bylaws and Colorado law.
If you decide to move forward with the meeting, you will probably need to allow for remote participation by speaker-phone, zoom, or some other telephonic or video-conferencing method. Keep in mind that Colorado law allows members to attend meetings by telecommunication as long as the members can hear each other during the meetings. There are a number of easy to use platforms such as zoom, gotomeeting, ringcentral that may be used to accomplish this task. Also, here is a good online meeting guide from the Community Associations Institute (“CAI”), which includes tips and best practices for online meetings, as well as a list of various platforms for use.
You might want to also consider taking action by written ballot (i.e., by mail) for anything other than ratification of the budget. CCIOA requires a meeting of the owner to consider the budget, which cannot be handled via mail. Action by written ballot requirements can be found here.
2. Can the Board hold a meeting remotely or take action by email?
Yes boards can hold meetings remotely, but must still follow meeting requirements under Colorado law. Consider the following:
- Everyone needs to be able to hear each other simultaneously.
- Board meetings are still required to be open to homeowner attendance (other than when in executive session), so if a homeowner wishes the sign-in information, give it to them. You do not need to provide the telecommunication device for them to access the meeting, but you do need to allow the opportunity to attend.
- If any homeowners decide to attend remotely, keep in mind that before the board takes action, homeowners are entitled to speak on the proposed action.
- Other than during homeowner forum and prior to taking action, homeowner participation can be limited. Many online meeting tools allow participants to be able to observe and hear, but not to speak until the appropriate time. So you can turn that feature on/off at the appropriate time.
- Follow these Online Board Meeting Tips.
As far as taking action by email, keep in mind that Colorado law defers to your bylaws for the appropriate procedures and approval requirements for such action. This might mean that you will need to obtain unanimous approval for all board votes taken by email. See our prior blogpost regarding what to consider for taking board action by email.
3. Do we have a legal duty keep our members healthy?
You do not have a legal duty to keep your members healthy. Homeowners and residents are responsible for their own health and safety. An association cannot prevent someone from getting ill no matter what preventative steps you take, and the board should not look to assume this role.
Additionally, even though your governing documents might state that one of the association’s purposes is to advance the health, safety, and welfare of the residents, the authority within which to carry out that purpose is limited to what is stated in your governing documents, state law, and applicable mandate. For example, you might think that disinfecting everyone’s unit might advance the health, safety and welfare of the residences, but that does not mean you have the emergency power to now enter into every unit for disinfection purposes. There are no emergency powers available to exceed your role. And, exceeding your role invites liability. If you are unsure of the scope of your authority, consult your attorney.
That being said, you do have a duty to ensure the common areas are maintained and, given the pandemic, that duty is likely heightened beyond the typical maintenance. Consider doing the following:
o Extensive cleaning, disinfecting, or wiping down of common areas and common area surfaces;
o Closing recreational facilities such as gyms, clubhouses, and pools; and
o Placing hand sanitizer dispensers or wipes in common areas, particularly high-traffic ones, for owner and guest use.
For high-rise communities and other multi-family buildings where residents/guests are frequently in close proximity and regularly use the same amenities, consider also regularly cleaning and disinfecting stairwells, lobby furniture, key fob readers, building security entry keypads, mailbox areas, laundry rooms, basically any area that residents regularly touch.
4. Can we close our common area swimming pool, gym, recreational facility?
Yes. Consider your authority. The common area facilities are under the regulation authority of the Board of Directors, and this regulation would include temporary closure. The Board of Directors must act in good faith, prudently, and in the best interest of the association under the circumstances. And, as we all know, the circumstances are unprecedented. Closure of recreational facilities, swimming pools and other areas that are conducive to congregation are particularly justified in light of the Stay-At-Home Public Health Order 20-24 (“Order”) issued by Governor Polis. As long the board believes closure is in the best interest of the association, then it is a reasonable and defensible decision.
That being said, you should not close facilities that are critical to the operation of the association, such as elevators or common area laundry facilities. Such areas, however, should be regularly cleaned and disinfected.
You should also post a notice on all closed facilities indicating that such facilities are being closed in compliance with the Order and to slow the spread of the virus. We also recommend sending a community-wide communication to the residents notifying them of the closure and other actions that are being taken in response to COVID-19. Communication is critical during the pandemic, as residents need to know that the board and management are taking this seriously. Here is a sample letter provided by CAI, which covers some of the steps your community may take or has already taken to address COVID-19.
5. Can/should we suspend all collections during the pandemic?
While it might be tempting to suspend all collections for a period of time to help people catch up, keep in mind that the board has a duty to act in the best interest of the Association, not in the best interest of owners who may be in a financially difficult situation due to COVID-19. You need to keep in mind that whatever action you take with respect to assessments today, in reaction to the pandemic, may have a severe impact on the association several months from now. So you need to make a reasoned decision and look not only at today’s financial circumstances in light of COVID-19, but tomorrow’s financial health.
Some reasonable options might be to waive late fees or interest, or provide longer payment plans to assist homeowners who have been financially impacted by COVID-19. But the association has a duty to collect; so we would not recommend stopping collections efforts altogether. Assessments are the lifeblood of an association; it needs them to function appropriately. If the board does decide to issue some form of a moratorium, then we recommend the board adopt a resolution clarifying their decision. See our prior blogpost, which includes a sample moratorium resolution.
6. Can we prohibit entry into the community by guests, contractors, short-term rental occupants?
While you have authority under your governing documents to regulate the general common areas, you likely do not have authority to deny ingress/egress from a homeowner’s unit. The Order does not create this authority. So while you can suggest to homeowners that they cease short-term rentals, or curb guests or contractors during the lockdown, you likely have no clear authority to prohibit entry.
That being said, the governing documents and the type of community (i.e., those that have controlled access) might allow some associations both the authority and the ability to physically deny access into the building. In those situations, however, the ability to monitor and enforce violations may be difficult.
7. Do we have a duty to enforce the covenants during the pandemic?
The general duty to enforce the covenants does not disappear because of the existence of COVID-19 or the Order. The covenants are still in place to protect the association; however, some covenants might be more of an enforcement priority than others. For example, a maintenance/repair violation might need to be enforced in order to prevent additional damage to the common elements or another unit. Or, given everyone is home during the lockdown, noise disturbances such as barking dogs might be more prevalent, and therefore, should be addressed.
Failure to keep the yard weed-free, on the other hand, might be less of a priority. And, enforcement of any type of violation that places someone in danger of being exposed to the virus or of violating the Order would be problematic. So from a practical standpoint, when evaluating enforcement of violations during the lockdown, you should be reviewing the violation on a case-by-case basis.
We hope the above was helpful. Keep in mind that the guidance today may change tomorrow as additional mandates and guidelines come from local, state and federal government. It is important to note that this article should not be considered legal advice but, rather, guidance to help you maneuver COVID-19. Ultimately if you have questions about your specific association, you should seek advice from your association’s legal counsel.
Do not hesitate to contact an Altitude Community Law attorney at 303.432.9999 if you have any additional questions about COVID-19 and its impact governing common interest communities.