Board members often ask what needs to be shown in order to prove there is a covenant violation at a hearing versus at trial. The answers to both are very different.
At a Hearing for Imposition of a fine:
- Most governing documents and the Colorado Common Interest Ownership Act (“CCIOA”) only require associations grant owners hearings prior to imposition of fines. Specifically, CCIOA requires that prior to the imposition of a fine an owner must be provided notice and opportunity for a hearing. That hearing must occur before an “Impartial Decision Maker” and must comply with the terms of the association’s governing documents.
- Many governing documents set forth a hearing process, which must be followed by associations. However, if your governing documents provide no guidance, a good place to start is asking the homeowner charged with a violation to provide information as to why he/she believes there is no violation. After the homeowner presents his/her information, an association representative (or complaining party) can provide contradictory information so that both sides of the story are heard.
- The most common type of document used for hearings is photos. The benefit to using photos is that photos are generally less likely to be challenged. Other documents that can be useful during a hearing will depend on the nature of the violation, but can include advertisements if the violation is running a business out of a home, or audio recordings if the allegations relate to noise violations.
- Eye witness testimony is the predominant type of proof for any type of hearing. A witness can advise the hearing panel of what he/she saw. Eye witness testimony is frequently challenged by owners, which can lead to a he-said, she-said situation.
At a Trial for Covenant Violations:
- The court must first be shown there is a valid homeowners association in existence. To establish this fact you will need to provide copies of the articles of incorporation, bylaws, and the declaration of covenants, conditions, and restrictions.
- The Association has to show it is properly registered with DORA.
- The association will also have to produce copies of its collection policy and the covenant enforcement policy.
- If the enforcement action involves violation of a rule or guideline, a copy of the rules or guidelines must be provided to the court.
- County Assessor records or copy of a warranty deed will be necessary to establish that the home in question is part of the association.
- The association will also be required to prove existence of the alleged violation. This can be done the same way as at a hearing in front of the board. Photos and testimony from a manager indicating he/she saw the violation first hand, as well as testimony from board members are generally helpful. Sometimes other documents, as discussed earlier in this article, may be necessary too.
- Finally, the court has to be shown that the association tried everything else, without success, to obtain compliance. This requires the association to show copies of demand letters sent to the violator, as well as impositions of fines, and demand letters sent by the attorney.
It is important to realize there is not a “one size fits all” list that encompasses required documentation in every violation hearing or court procedure. Therefore, every matter is handled on a case-by-case basis.
The most important thing to remember when it comes to court proceedings is that you have to tell the judge your “story”. You may not have seen the owner create the covenant violation but you saw the home one day without the violation and then the next day with the violation. So a neighbor could testify and advise the court, for example, that one day the neighboring house was blue, and the next day it was purple. The assessor records will provide proof that the same individual owned the house both days, and photos can add to the facts that it was blue one day and purple the next.
The manager can testify that no application was presented to the architectural committee and a board member could testify that the declaration prohibits purple paint. The manager would testify to the letters sent and fines applied and the owner refused to correct the violation. Letters sent to the owner and the letters were not returned in the mail provide a presumption to the court that the owners refused to cooperate with requests of the association to correct the violation. So each “little” item presented paints the big picture for the court, which allows the prepared association to prevail in a covenant enforcement trial.
For more information about the covenant enforcement process, please contact a Altitude Community Law attorney at 303.432.9999.