As Spring quickly approaches, many homeowners will begin making upgrades and repairs to their homes and landscaping. Oftentimes these homeowners forget that prior to commencing work on their property they need to get approval from their HOA. With so many violations about to occur, what is the process that an association must follow to address these unauthorized changes and repairs?
HOA’s in Colorado are required to have nine specific “good governance” policies. One of these nine policies is a covenant enforcement policy. If an association does not have a covenant enforcement policy in place, it will not be able to collect fines against homeowners who are in violation of the covenants, nor will the association be able to collect attorney fees for enforcement actions.
While covenant enforcement policies are unique to each association as the governing documents of each association are unique, there are certain provisions that every enforcement policy should contain:
First, the policy should lay out how a violation is noticed and reported. The policy should contain provisions that allow board members and managers the ability to notify owners of a potential violation when they notice one. Additionally, the policy should have a mechanism which allows other members of the association to file a complaint when such member sees a violation. The policy should require that complaints be in writing, and be signed, or contain identifying information of the complaining party. Once the association has received a signed complaint it should investigate and verify that a violation has in fact occurred. If the association determines that a violation has occurred, the association should move on to the next step of the policy, as detailed below.
Second, after a violation has been confirmed, the association must send notice of the violation to the owner of the property. This first notice should be a warning or courtesy notice to the owner. This notice should include, at a minimum, what the alleged violation is (i.e. weeds), what provision of the declaration and or rule/guideline has been violated (you should cite site the provision verbatim), how the association wants the violation to be remedied (i.e. remove the weeds), and state a reasonable amount of time for the owner to come into compliance (10-15 days).
Third, if the alleged violation is not cured within the time frame set forth in the initial warning/courtesy letter above, the association will send a second letter to the alleged violator per the covenant enforcement policy. This letter needs to again clearly explain the violation and explain what action the owner must perform to cure the violation. If the covenant enforcement policy states that a fine is associated with this non-compliance, the association must indicate in this second letter that a fine may be imposed after this notice and an opportunity for a hearing.
In accordance with Colorado law, an association may not levy a fine until after it provides the alleged violator with notice and an opportunity for a hearing. The association’s fine letter should read something similar to, “The association has attempted to contact you regarding the weeds on your property. The weeds may constitute a violation of the covenants for _________ association. You may request a hearing to discuss this matter on __“specific date”_________. If a violation is found to exist at the before mentioned hearing or if you fail to request a hearing, a fine may be levied for the violation.”
The Colorado Common Interest Ownership Act (“CCIOA”) mandates a certain amount of procedural due process prior to levying a fine. At the hearing, the decision maker may only make a decision based upon the information presented including the original complaint. Depending on the association’s covenant enforcement policy, this notice, hearing, and fine process should be repeated two to three times. The owner must be provided the opportunity to have a hearing before each and every fine is implemented.
If the owner has not remedied the violation after the association has sent the required notices under the covenant enforcement policy, the association will turn the account over to its attorney for further enforcement efforts. It is important to follow the covenant enforcement policy closely and to turn the account over to an attorney in the prescribed time as some violations are time sensitive and legal action must be taken before the right to do so expires.
If the owner requests or attends a hearing, how is the hearing run? A hearing is an opportunity for the association to determine what has occurred or is still occurring regarding the alleged violation. The association representatives conducting the hearing should listen to the evidence presented by both the owner and the written complaint from the board member, manager, or owner that first reported the violation. The owner may then address the person or persons conducting the hearing to explain either: (1) why the owner believes no violation has occurred; or (2) explain any mitigating factors which may impact the decision of the person or persons conducting the hearing. The person or persons conducting the hearing may then rule as to the existence of a violation. If a violation is found to exist, the association may levy a fine in an amount specified in the association’s covenant enforcement policy.
Pursuant to CCIOA, the hearing must be conducted by an impartial decision maker. The impartial decision maker is oftentimes the board or a committee. If one of the board members or committee members is directly impacted (more so than other members of the association) by the potential decision, this board or committee member must recuse himself or herself from the decision making process. Once the hearing has been held, we recommend a decision not be made immediately at the hearing, but that a written decision be provided to the owner within 5-7 business days or such other timeframe as outlined in the covenant enforcement policy.
It is important to remember associations have a responsibility to enforce the declaration, rules, and guidelines, and to do so in a consistent manner as to all members of the association. Springtime is a great time to remind your members of the importance of covenant compliance in a newsletter or other community wide communication. Additionally, Spring is a great time to walk your community and identify any existing violations so as to provide ample time for your members to remedy violations.
If you would like more information on enforcing your governing documents, please do not hesitate to contact an Altitude Community Law attorney at 303.432.9999 or at [email protected].