By Damien M Bielli, Vial Fotheringham, LLP

The Colorado Common Interest Ownership Act prohibits an association from selectively enforcing declarations, articles, and bylaws. The statute commands that, “[d]ecisions concerning the approval or denial of a unit owner's application for architectural or landscaping changes shall be made in accordance with standards and procedures set forth in the declaration or in duly adopted rules and regulations or bylaws of the association, and shall not be made arbitrarily or capriciously.” C.R.S. 38-33.3-302(3)(b).

Selective enforcement by an HOA is a failure to uniformly apply the HOA’s rules and regulations to all owners. This can occur in architectural requests, collection of unpaid assessments and most commonly in enforcing rules and regulations. Simply, the HOA is guilty of selective enforcement when it picks and chooses how enforcement is carried out and against whom the rules are enforced. This can occur intentionally or by oversight and is problematic when the Association faces judicial scrutiny.  

Selective enforcement is like selective hearing. As a husband and father, I have been accused of selective hearing. Some may believe this is intentional. More often than not it is merely a failure to pay attention. In the same way, selective enforcement is viewed by many as an intentional act of the association. This leads to animosity between owners and board members and can lead to claims of discrimination. Most significantly, it is an affirmative defense to enforcement actions against owners. Most of the time, however, selective enforcement arises from benign causes and is preventable. 

Many selective enforcement concerns can be alleviated by instituting and following comprehensive and specific policies. These policies should be clear and concise and provide a timeline of enforcement from inception to conclusion which can be followed by owners and board members. Strict adherence to policies removes subjective decision making which may be viewed as “selective” and ensures that each violation follows the same path to conclusion. 

In evaluating an owner’s claim of selective enforcement, courts in Colorado will evaluate the enforcement process of the association as well as its history of enforcement: 

“It appears from the log of the Plaintiff that it has consistently looked into possible violations as set forth in Plaintiff's Exhibit 27. As an example, it appears that a total of 125 violations were issued in the 13 months period between April 2007 and May 2008. There were also 57 [Design Review Requests] processed between January 2006 and May 2008. That does not require that every violation be sustained or even pursued upon proper investigation but it does indicate that there is no selective enforcement going on here.” 

Weatherspoon v. Provincetowne Master Owners Association 2010 WL 3522559.

It is important that the association keep detailed records of its enforcement actions not only to provide supporting documentation for individual violations, but also as evidence of its uniform enforcement throughout the community.  

Equally important to a uniform and neutral enforcement policy is uniformity and consistency in reporting violations. Associations that rely on management to observe and report violations can look to the management contract for frequency and depth of inspections. This reduces the likelihood that an owner will be successful on a claim for selective enforcement. Associations that are self-managed should adopt guidelines for inspections and reporting violations. The guidelines should identify the depth and frequency of inspections in order to remove any subjectivity. This reduces inconsistency in the inspection and reporting process and serves to further neutralize allegations of selective enforcement.  

Finally, associations who have been more relaxed in enforcing the Declaration may find themselves in a precarious position once the Board decides to pursue violations. One Colorado Court stated:

“In Colorado, a homeowners' association is estopped from enforcing a covenant against a particular owner where (1) the association had full knowledge of the facts, (2) unreasonably delayed in asserting an available remedy and (3) there is intervening reliance to the detriment of the lot owner. Woodmoor Improvement Assoc. v. Brenner, 919 P.2d 928, 931 (Colo. App. 1996); Holiday, Acres Property Owners Assoc., Inc. v. Wise, 998 P.2d 1106 (Colo. App. 2000) (homeowners association estopped from enforcing a covenant upon a lot owner). See Cole v. Colorado Springs, Co., 381 P.2d 13 (Colo. 1963) (corporation waived right to enforce a restriction when in the past it acquiesced and refrained from enforcing it against others).”

Schneider v. Eglantine Condominium Association Inc. 2009 WL 2626287 (Colo.Dist.Ct.) (Trial Order). 

While the Court concluded that the association waived its right to enforce the documents in this particular case, the decision was based upon the association choosing when to enforce its governing documents. 

While some Board members may be sympathetic to certain homeowners or consider certain violations as more or less significant, the association, through its board, has a duty to uniformly and consistently apply the rules and regulations to every owner. Failure to do so will likely result in frustration of enforcement efforts and financial consequences.  

Damien M Bielli, is a Partner with Vial Fotheringham LLP. Damien has an extensive background in Homeowners’ Association Law, Non-Profit Corporate Governance, trial advocacy, insurance defense, professional liability, coverage disputes, employment law, construction, commercial litigation, and contracts.

By Ashley Nichols, CAI-RMC Editorial Committee Chair

The recent Marshall fire that ravaged Boulder County destroyed nearly 1,000 homes.  In the face of the most destructive fire in Colorado history, many of those affected are now dealing with what to do in the aftermath.  Rebuilding their homes (and their lives after loss) takes a community.  It also isn’t something that will, or can, happen overnight.  One of the questions that we are already facing is that of what happens to assessments for those owners in affected community associations that lost their homes, or where common area amenities were destroyed.  And it’s a tough one – but it is important to remember that owners’ assessments go to pay for common expenses of an association, which continue even during the rebuilding process.  

Associations are non-profit corporations with Boards that have a fiduciary duty to protect, preserve, and enhance the property values in the community.  Part of the duty is to ensure that the governing documents for the Association are followed, and in the case where disaster affects a community, such as with the Marshall fire, while it may be hard to see right now through the tragedy, continuing to ensure that assessments are paid will help communities rebuild.

While not the same type of tragedy, in 2020 (and ongoing) the COVID pandemic posed a similar question of how to deal with assessments for impacted owners due to something out of their control.  Incomes of many homeowners in communities were likely significantly reduced and/or eliminated.  And the best advice during that time remains the same here, for owners who lost homes and/or parts of their communities due to the fire – to be compassionate.  Each community board will have to make difficult decisions based on the different circumstances of each of their owners, which means considering the hardships that their residents may be experiencing and be willing to work with residents to ensure that homeowners and their associations are both able to meet their needs to support their families and communities.  

The Rocky Mountain Chapter of Community Association Institute is here to support our communities during this difficult time as well.  Donations from business partners, management companies, and homeowner leaders totaling over $7,500 have been received and distributed to partners in order to help those affected by the fire.  We will continue to use the resources that we can to help these communities rebuild, better and stronger.

By Deborah Wilson, Springman, Braden, Wilson & Pontius

In addition to the myriad of COVID-19-related moratoria and executive orders since March of 2020, the Colorado legislature also implemented a number of new laws affecting the Landlord/Tenant relationship in 2021. Most of those changes are related to residential leases so it is important that those living and renting units in covenant-controlled communities know and understand these new changes, and for Community Association Boards to understand what restrictions they may impose on homeowners who rent out their units. A Board must also manage its expectations of how quickly a Landlord/Homeowner is able to resolve lease or rule violations by a Tenant within the community in today’s legal climate.

HB 21-1121: House Bill 21-1121 became effective 6/25/21. Among other things, (1) the bill restricts a residential Landlord’s right to raise the rent more than once in a 12-month period after the first year, regardless of the term of the lease, (2) the bill prohibits a sheriff from executing on a residential writ of restitution for at least 10 days after the judgment for possession enters, and  (3) if no written agreement exists between the residential landlord and the tenant, the landlord must give at least 60 days written notice of rent increase and may not serve a Non-Renewal Notice of oral lease where the primary purpose is to increase the tenant’s rent more than once a year. As a practical matter, Community Association Boards should require all Landlords to have and provide a copy of a written lease agreement and understand that a Homeowner as Landlord may face delays in the eviction process under this new law.

SB 21-173: This 15-page bill became effective 10/1/21 and makes sweeping changes to the laws governing residential leases in Colorado, particularly in the area of late fees, the wording of residential leases, and the eviction process. With regard to the residential eviction process, a residential tenant now has up until entry of judgment for possession to pay all amounts stated on the demand (including any HOA fines listed) plus any subsequently accrued rent to the Landlord or to the Court. The Court shall set the trial for a date 7-10 days after the answer is filed; however, except in cases arising from substantial violation of lease/law, the court may delay the trial date where good cause exists, or a delay is justified. As a practical matter, Landlords often face long delays in the eviction process right now. The law governing the warranty of habitability have been expanded to increase defenses for tenants, which in turn create legal problems for Community Associations who should increase response time for repairs and treatment for infestation of pests and rodents in the community common areas. The bill imposes new substantial damages upon a Landlord who removes/excludes a tenant from a residential home without resorting to court process, except where abandonment is clear. 

HB 20-1332: House Bill 20-1332 became effective 1/1/21. It adds discrimination based on source of income as a type of unfair housing practice. A residential Landlord may not refuse to rent or show a rental unit, or accept an offer to rent, or make a unit unavailable because of someone’s “source of income.” The Landlord may not advertise in a discriminatory way and must now accept public housing INCLUDING SECTION 8 VOUCHERS if the applicant otherwise qualifies, so long as the initial payment to Landlord is made timely. There are two exceptions in the bill: (1) Landlord who owns or manages 3 or fewer residential units is exempt for the entire bill and (2) a Landlord who owns 5 or fewer rental units is required to comply with this bill, except that the small Landlord is not required to accept Section 8 vouchers for any single-family rental units they may own. Community Association Boards should not prohibit Homeowners from renting to Section 8 tenants or otherwise discriminate based on the tenant’s source of income. 

SB 20-108: Senate Bill 20-108became effective 1/1/21 and creates a private right of action for violation of civil rights against a Residential Landlord who discriminates based on an Applicant’s or Tenant’s actual or perceived immigration status. Housing providers may not inquire about, request, or disclose information regarding immigration status, may not harass or intimidate a tenant because of immigration status, and may not refuse to rent to them if they otherwise qualify. Community Associations may not prohibit a Homeowner from renting to tenants who are not lawfully present in the U.S. or require a homeowner to demand social security numbers for their tenants.

In addition to compliance with the above new laws, Landlords and Community Associations should be aware of existing Colorado laws on Application fees, rent receipts, gas appliances, carbon monoxide detectors, habitability, Fair Housing, screening restrictions as well as governmental restrictions based on protected classes, assistance animals, restrictions on occupancy standards and unrelated tenants. Landlords leasing to tenants governed by Community Associations should always incorporate by reference the Community governing documents into their leases, require tenants to read and abide by Community Rules and Regulations, and be subject to any damages or fines assessed by the Association for failure to comply.

Deborah Wilson is an attorney and managing shareholder at Springman, Braden, Wilson & Pontius, PC.  Springman, Braden, Wilson & Pontius has been assisting Community Association Boards, Landlords and Property Managers for over 30 years in their collections, evictions, Fair Housing, and general counsel needs.  

By Penny Manship, Burg Simpson Eldredge Hersh Jardine, P.C.

Within days of the tragic partial collapse of the 12-story beachfront condominium at Champlain Tower South in Surfside, Florida, on June 24, 2021, the leadership of Community Associations Institute (CAI) met and began outreach to other organizations with a goal of providing policy recommendations to ensure such a catastrophe never happens again. 

In October 2021, CAI published the Condominium Safety Public Policy Report: Reserve Studies and Funding, Maintenance, and Structural Integrity (Report). The Report was the result of more than three-months of investigation by three task forces and over 600 volunteers, engaged in meetings, conversations, surveys, research, interviews, and identification of clear recommendations. It provides policy positions adopted and approved by CAI regarding “Reserve Study and Funding” and “Building Maintenance and Structural Integrity.”

Reserve Study and Funding Policy Positions:

CAI recommends state laws that mandate reserve studies and funding for all community associations. The Report contains recommendations for public policies to be adopted into state laws, including but not limited to: 

• mandatory reserve studies at transition/turnover from declarant to homeowner control and at a periodic basis thereafter; 
• mandatory reserve funding for all community associations; and 
• mandatory disclosures to new buyers. 

While the Report acknowledges that it is unknown if updated standards in this area would have prevented the collapse at Champlain Towers South, the authors noted that “80% of community managers, board members, and contractors in community associations surveyed across the U.S. felt it was critical that their association have adequate reserves in the event of a major infrastructure failure or construction need.” Clearly, education regarding the purpose of reserve studies and funding is necessary because, while they are important planning tools for budgeting for replacement and repairs based upon normal life cycles, they are not intended to deal with existing building conditions or defective original construction.

The Report also contains a Summary of State Reserve Fund Laws as of October 2021. The table below summarizes those states with mandatory existing reserve study and operating funds requirements.

Mandatory Requirement	States Where Adopted
Reserve studies for condominium associations	California, Colorado, Delaware, Hawaii, Nevada, Oregon, Utah, Virginia, Washington State
Reserve studies for developers	California, Delaware, Florida, Nevada, and Oregon
Reserve funding for condominium associations	Connecticut, Delaware, Florida, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, Nevada, Ohio, and Oregon
Reserve funding for developers	Arizona, Delaware, Florida, Nevada, Oregon, and Wisconsin

Building Maintenance and Structural Integrity Policy Positions:

CAI recommends laws that impose additional requirements upon developers at turnover and prior thereto, including but not limited to: 

• providing a complete set of final approved architectural and engineering design drawings; 
• inspections during construction to ensure general conformance with plans and specifications;  
• providing preventative maintenance manuals; and 
• disclosure of future “Building Inspection Requirements.”

With respect to this last requirement, the Report sets forth CAI’s recommendations for “[m]andatory building inspections of the major structural elements owned or maintained by the community association for all multi-family buildings of concrete, load bearing masonry, steel, or hybrid structural systems such as heavy timber including podium decks.” The inspection recommendations, which apply to new construction and existing buildings, set forth the following timelines and scopes:

First Inspection:

• • New construction: within 5 years after occupancy
  • Existing buildings (more than 10 years old): within 2 years of passage of statutory requirement
  • Purpose: Baseline for future inspections and identify issues of immediate concern; recommendation for next inspection in accordance with timing set for period inspections below

Periodic Inspections:

• • Every 10 years for first 20 years since construction and 5 years thereafter, unless prior inspection recommends sooner
  • Purpose: Monitor progressive deterioration and identify issues of immediate concern; recommendation for timing of next inspection

Immediate Inspection(s):

• • Any time there is a concern about safety or stability of structure

Scope of Inspections:

• • Protocol set forth in ASCE Standard SEI/ASCE 11-99 (latest edition) Guideline for Structural Condition Assessment of Existing Buildings or other industry standards

The Report also recommends legislation that empowers a community association’s governing board to impose a special assessment or borrow funds necessary for “emergent life safety repairs” without a vote of the membership, regardless of any provisions in the governing documents to the contrary.

CAI’s Federal Legislative Action Committee also addressed in the Report “Federal Solutions and Policy Priorities.” The priorities discussed include easing financial burdens on local governments, engaging federal housing agencies regarding loan products, and easing financial impacts on homeowners through changes to income tax codes.

CAI’s Best Practice recommendations are also included in the Report with respect to reserve studies and funding and building maintenance. 

We should all recognize that this is only the beginning of what is sure to be a long process of changes on the federal, state, local and community levels. Community managers, board members, and homeowners must continue to be involved in educating themselves on how proposed legislation, regulations, and changes to governing documents will impact their communities and keep them safe. 

Penny Manship is an attorney at Burg Simpson Eldredge Hersh Jardine, P.C. She has over 20 years of experience representing homeowners associations and homeowners in construction defect litigation. She is a member of the CAI-RMC Mountain Conference Committee. 

By Kerry H. Wallace, Goodman & Wallace, P.C. 

Often in planned communities and rural areas owners purchase adjacent lots which remain undeveloped. The purpose typically is to protect privacy and views for the developed adjacent lot. Merging the lots into one or adding landscaping and improvements can require the community to address development standards and plat amendment legal requirements. Recent legislative changes relative to taxation of adjacent undeveloped lots likely will lead to many communities needing to insure that correct legal processes are adhered too and that the communities’ governing documents are up to speed.  

Tax Implications 

The Gallagher Amendment, adopted in 1982, requires the legislature to annually adjust the tax rate for residential real property but set a fixed assessment rate for "all other taxable property" at twenty-nine percent. Because of this requirement, the General Assembly has continually lowered the assessment rate for residential real property, the result being a significantly lower assessment rate for “residential real property.” For example, during the years 2013 to 2015, the assessment rate for residential real property was 7.96 percent. In contrast, the tax rate for vacant land remained at twenty-nine percent. With such a large discrepancy, landowners often seek classification of adjacent undeveloped land as residential land under Section 39-1-102(14.4)(a), C.R.S. (2019) which expressly contemplated the classification of multiple parcels as residential land. In those situations in order to qualify, per the law applicable until now, any undeveloped parcels were required to be: (1) contiguous with residential land; (2) used as a unit with residential land; and (3) under common ownership with residential land. 

In 2020 the Colorado Supreme Court decided Mook v. Summit County Board of County Commissioners, 457 P.3d 568 (Colo. 2020), which addressed the standards used to determine if an undeveloped  parcel can be considered residential for tax purposes. The holding lead to an amendment of the portion of the statute that defines Residential Land, with the following being a new key aspect of that defined term: “A parcel of land without a residential improvement located thereon, if the parcel is contiguous to a parcel of residential land that has identical ownership based on the record title and contains a related improvement that is essential to the use of the residential improvement located on the identically owned contiguous residential land. “Related improvement” means a driveway, parking space, or improvement other than a building, or that portion of a building designed for use predominantly as a place of residency by a person, a family, or families.”

Community Considerations and Approaches

Depending on how the enforcing governmental agencies apply the new statutory definitions relative to Residential Land, communities may see an increase in requests to merge lots and/or add “Related Improvements”to a contiguous undeveloped lot in order to acquire or maintain the residential classification for tax purposes. Communities can allow for smooth governance on such matters by adopting policies and procedures relative to merging lots, amending building envelopes and constructing improvements on adjacent lots. In the event of a required amendment to a final plat or plat map, it is important to insure that the requirements of the Colorado Common Interest Act at C.R.S. 38-33.3-217 (1) are met, which requires the approval of 67% of the owners to amend a plat (this is lowered to 50% if the Declaration for the community provides for that lower percentage). This means that any plat amendment should receive association approval through the Board, 67% approval by the owners as well as meeting all governmental requirements. A plat amendment that does not meet these requirements is arguably void.

KERRY H. WALLACE  is a Partner in the law firm Goodman and Wallace, P.C. located in Edwards – 15 miles west of Vail. Kerry’s practice focuses upon resort based common interest communities including governance guidance and compliance with the ever-changing common interest community legal landscape. Kerry served on the Eagle County Planning and Zoning Committee from 2003-2007, is a current Business Partner of CAI-RMC and has been a speaker and panel member at numerous CAI Colorado - Rocky Mountain conferences.

By Sabrina Lopez, CMCA, AMS, Westwind Management Group

In most associations, it seems that doing that weekly drive to find those owners in non-compliance is the rage lately or has it been for some time now? Do you find that this brings a sense of community to those living in your association when they get this violation letter in the mail? I have come to find that many owners on the other side of those violation letters don’t seem to feel that way. Just think about if you maybe just moved in or bought that fancy lawn ornament and then got a nasty gram in the mail about how it is in violation and must be removed immediately. How would you feel? While I completely agree that the association board has a duty to enforce the governing documents, maybe there is a better way to bring in a sense of community along with such enforcement. Can we stop for just a minute to think about how we would view the association we just moved into or have lived in for some time after reading a violation letter received for that new beloved lawn ornament? What can we possibly do to ease the harsh punishment of a letter arriving in your mail and potentially making you feel that your community is a bunch of lunatics on a path to send letters for every little thing you do and love? 

I would think that a reminder letter is a great way to begin. Rewording the letter to say “Hello fabulous owner in our loving association, we love your new lawn ornament, but unfortunately such a beauty is not currently allowed in your front yard. While we think it is a great purchase, the documents just don’t allow for it at this time. Maybe you can help us take a look at the documents to see if they need updating. If you are interested in helping us take a look at this, maybe, just maybe, we can allow such lawn décor to be placed in your front yard. They are likely in need of an update anyways and committee volunteers are certainly helpful in getting things as such updated.” WOW! Doesn’t that just come across so much better than “Dear Homeowner, you are in violation of our covenants and your lawn ornament must be immediately removed. If you do not remove it, you will be fined.” YIKES! I would not be too keen on my community if I got that verbiage instead. You see what I mean - the message has to come across differently, otherwise it just seems like harsh punishment as mentioned before. What a better community to live in if the message was a bit softer and more welcoming, right?

Now I am not suggesting you go out and rewrite every violation letter; what I am saying is maybe we need to be a bit more kind in our message. Form templates are easy and make our work simple by using a standard template letter to send out to all those in violation from our compliance drive but think about the receiver and the tone you will get on the phone call or email received from them after. That gut feeling after one of those doesn’t feel great. A little time and effort to acknowledge their situation and the approach that “we could use your help,” could go a long way. Especially on a first notice.

Another approach is reminders in your newsletters. I know most associations send out a monthly or quarterly newsletter (and if not, you should). This gives the owners a gentle reminder of the rules of the community. Think about a spring newsletter as we tend to see an increase in violations during the spring and into the summer months. The newsletter could be a great beginning to a better violation year by simply putting in reminders about those common violations we see, potentially reducing the number of violations we have to send out during this busy season. Remind them of items placed in their front yards and on their homes, to look at their homes to see if they may need paint, to maintain their lawns and oh boy those pesky weeds we so often have to send letters out on. Make the newsletter fun and inviting so people want to read it. Mention that these are things that the owner will want to do or to avoid if they don’t want to receive a compliance letter in the mail. I, for one, would read a well written and fun to look at newsletter and try to do whatever I can to avoid those nasty grams in the mail. A sense of community, that is what I think most owners want. Think about how we can bring this to all associations, making it a more peaceful place with less owners upset about how they cannot do certain things in and around their homes. Bring that sense of community to your association today!

As a manager with 14 years in this industry, I think we need to be a little more caring in what we do, and how we approach things. We here at Westwind Management care so much about each other and I think that goes a long way in the job we perform and the love we have for it. 

By Eric Lecky, SageWater

Innovation is a curious thing.  It happens in fits and starts, leaps and bounds; it is sometimes evolutionary and sometimes revolutionary.  We see it daily, we experience it real-time - in our technology, in our society, and in our lives.

In many ways, innovation is front and center. In other areas it goes almost unnoticed.  Take piping for instance: the concept of using a tubular vessel to carry water has been around since humans figured out how to make tubular vessels to carry water.  From clay to metal to plastic, the material may have evolved, but the very nature of plumbing remains unchanged, to move water from one place to another.

So, what are the next innovations that will reshape the future of plumbing?  Is there any better way to actually carry water from one place to another?  Who knows, but as specialists focused on replacing aged and defective plumbing systems, we certainly see some obvious areas for improvement, and are approached every day by the “next big thing” in the industry.  

But what if we aren’t thinking outside the box as much as we should, or further enough into the future.  What are the real possibilities?  Well, here are some theories:

Current Technologies That Will Evolve Plumbing in the Next 5 to 20 Years

Sensors

From flow monitoring to remote controlled shut-off valves to water intrusion sensors, these technologies already exist, and it’s only a short matter of time before they become commonplace components of every piping system.  Reporting when water is moving too fast, too hot, with too much pressure, or is showing up where it doesn’t belong is easily achievable by installing various sensors in and around your piping system that can report such information.  As soon as you know a problem exists, the sensors can then be programmed to act on that information.  Water is too hot, automatically cool it down; flowing too fast, reduce the pump rates; leaking, shut it off.  Integrating computer technology and control systems into plumbing for both new construction and retrofits is a relatively easy task, and the costs are coming down every day.  We predict it will soon be ubiquitous.

Materials

There is an almost infinite array of plastic composites that are available to scientists and inventors today.  As research continues, advancements will be made and newer, better materials will continue to emerge in the marketplace, providing builders and homeowners with choices.  From better insulating options (temperature and sound) to improved connections to fittings, new materials will drive some level of innovation within current piping systems and new piping systems that have yet to be conceived will emerge.  Composites are even starting to appear with metal pipes, pre-lined at the factory with plastic resins to prevent corrosion, already available in the marketplace.

System Design

Environmental considerations are a chief driver in this area and looking at more energy efficient and environmentally friendly ways to heat and cool water, and to get it to flow (against gravity) with less energy, will continue to shape and influence how plumbing systems are designed and function.  Advances in centralization, decentralization, thermal conductivity and even material friction will all impact how systems are designed.  Is it better to have decentralized systems with shorter pipe runs, or centralized systems with longer runs but more friction resistant surfaces (e.g. hydrophobic coatings)?  Research, innovation, advanced modeling techniques and even artificial intelligence will all help answer these and other, far more complex, plumbing questions of the future.

But that’s all relatively predictable.  The harder and more exciting question is what happens next?  What hypothetical improvements will impact plumbing in 100 years or more?

As biology and technology continue on their march towards “The Singularity” (singularity.com), there is no doubt that new concepts in plumbing will emerge.  Think “smart” pipes that can sense corrosion and deploy an army of nanobots to perform an autonomous repair from inside the pipe.  Or “self-healing” pipes that can adjust their size and wall thickness based on temperature, pressure and velocity to better accommodate changes in behavioral use.  Need bigger, stronger pipes in the morning when everyone in a high-rise apartment building is showering and getting ready for work, but smaller, thinner pipes mid-day when usage is down?  Easy.  How about adaptive, organic pipes that can literally grow new branches to reroute around clogs?  Is it science fiction or could it really happen one day?

Is there an eventual end to piping?  Who knows, but probably.  Could localized, high-speed “condensators” that quickly pull water out of thin air replace the need for pipes altogether?  Maybe?  How about rapid biodegrading evaporators that dissolve and consume waste and then gasify directly into the atmosphere, eliminating the need for drains?  Science fiction?  Probably.  Or will we look back, 1,000 years from now, and marvel at the true genius of basic tubular plumbing, still going strong even after a millennia of evolutionary changes, simply moving water from one place to another?

Regardless of what plumbing innovations actually happen, there are three things we know are for sure:  

1. Water is very important and truly essential to life;  

2. Waste is bad and harmful if not handled properly (just read about the bubonic plague and plumbing issues during the dark ages;  and 

3. Until the next big thing comes along, pipes will continue to be used in residential construction, they will continue to age after installation, and when they do get old and start to fail, they will continue to require replacement.  Until the future arrives, we all simply have to deal with that reality.

Eric Lecky (elecky@sagewater.com) is an Executive Vice President at SageWater, North America’s leading pipe replacement contractor.  SageWater is headquartered in Alexandria, Virginia, with offices nationwide.  Over the past 30 years, they have replaced more than 35 million feet of pipe in over 100,000 occupied residential units.

By Kimberly Corcoran, CMCA, AMS, PCAM, Colorado Association Services, AAMC®– an Associa Company  

Now more than ever, it is important for association leaders to do what they can to stay engaged with their membership and build community. The events over the last 18 months have increased our appetites for human connection and added even more reasons and ways communities can benefit by coming together in social settings. As we re-introduce ourselves to our neighbors and promote harmony within our chosen communities, these events can provide the opportunity for residents to connect outside of just the business aspects of the association. Community events can be held no matter the size or type of community, and there are several factors to consider when holding your event to ensure it is successful. 

1. Know your audience. Depending on the demographics of your residents, plan an event that will appeal to a large portion of the population. Lots of young families? Consider a movie night or bike parade. Mostly working professionals? A wine and cheese social might be a better fit. If there is a good mix, alternate event types so that there is something for everyone. If you are unsure what type of event would be appealing to residents, ask them!
2. Consider the budget. Holding an event for the community typically involves spending association funds so boards should be mindful of this when planning events. There are plenty of ideas that can be done with little to no expense by the community. Halloween decorating contests are fun and easy to organize, and winners can receive gift cards or even be highlighted in the community newsletter. Book clubs, seasonal pot lucks and community garage sales are all low cost/no cost ideas that are great for associations dipping their toes in the event planning arena. Building solid partnerships with association contractors and suppliers can also be helpful as they are often willing to support or sponsor community events.
3. Be inclusive. It is difficult to find a magic bullet event that appeals to every resident but let their engagement level be their choice. Events should be well advertised and communicated to all resident types (owners, tenants, etc.). There should be an air of transparency, and an avoidance of secrecy around events or the feeling of needing a special invitation – if you truly want to engage with residents, make them feel welcomed.
4. Find a cause to support. If you have a secure common area, you can coordinate food drives, coats for kids, or other events that serve the greater community and serve to bring residents together in support of a common cause. If there is no secure drop off point, coordinate with an organization a date and time that donations can be dropped off, provide coffee and donuts, and ask the non-profit to take away the donations. You’ll meet your neighbors while gathering goods for a worthy cause. Reach out to an animal rescue and coordinate an adoption event in the community. Plan a ‘green’ event and coordinate recycling pickup, a shredding service and planting a tree in the common area. 
5. Try and try again. Don’t be surprised if the first effort at a community event has low attendance, especially if engagement between neighbors is generally low. There are many factors that go into growing participation – more communication/advertising, word of mouth, varying types of events, timing that aligns when people are more apt to be in town, etc. Resist the urge to give up after the first try. Also, be reasonable when deciding what ‘success’ looks like for your community. It could be argued that the occurrence of a positive interaction within the community is a win. As with most things, success comes with practice! 

If the board is not able to dedicate the additional time to planning community events, get a committee together. Inevitably, there is at least one person in the community who wants to know their neighbors and build a social connection where they live. Empower them to invest their energy and ideas within parameters established by the board.

If your association is truly committed to building community and having more engagement with residents, it is worth the repeated effort of planning events and bringing neighbors together socially. “There is no power for change greater than a community discovering what it cares about.” ~ Margaret J. Wheatley 

As a results-oriented leader, Kim Corcoran supports the team in delivering exceptional service and value to the Board and communities we serve. In a business that demands strong relationship skills, Kim understands the importance of effective communication and providing excellent and proactive customer service. Kim’s expertise in budgeting, operations, and board governance produces solutions, helping to create strong teams, partnerships, and results.

By Wes Wollenweber and Lee Freedman, PWF Legal

Is it better to wait until problems occur or to address issues ahead of time to prevent those problems from arising?  This is a concept that community associations around the country, not just in Colorado, struggle with on a daily basis.  Basically, the community version of the chicken versus the egg scenario – if we address the issue now, we may prevent the issue from ever occurring; however, if we do not address the issue now, we may never have to.  This debate always involves risk assessment.

The “reactive” approach is premised on the thinking that it is likely not worth a community association spending time and money – which could amount to a great deal of money – if the problems the association is addressing may never occur.  Board members and owners under this concept generally look at whether the association can save money by just addressing the issues on a piecemeal basis as the problems arise.  Basically, the “we are not going to increase assessments if these issues may never occur” approach or the “money saved is money earned” approach.  Further, such board members may believe they are better off politically by getting re-elected on a term-to-term basis if they can just keep assessments low by pushing the problems off to a future board of directors.

A big risk of this approach is that an association may be unprepared when the problems actually do occur.  The association may not have sufficient funds in its reserves to cover the costs to remediate or otherwise address the problems.  Greater damage or personal harm may result from the problem than originally anticipated if the association had taken reasonable precautions.  The association’s insurance policy may not cover any such damage or remediation if the association did not take reasonable precautions to prevent or limit the risk of harm from such problems.

From a legal perspective, an association or certain of its prior or current directors or officers could face legal consequences by failing to comply with their fiduciary duties to the association or the community.  In Colorado, an association must not act in bad faith and in an arbitrary and capricious manner.  Directors and officers must act in good faith, in the manner a reasonable director or officer in a similar circumstance would act, and in the best interests of the association.  Ultimately, the prior decision not to be proactive can come under scrutiny and substantially cost the association and its directors and officers dearly, not to mention the harm the problem may cause to person or property.

The “proactive” approach is to consider what problems are reasonably likely to occur in the future and address them now.  This does not mean spending all of the association’s money or levying a special assessment in order to address all problems that can occur and remedy them in all ways possible to avoid them from occurring in the future.  This approach focuses on a board acting reasonably to consider potential areas of concern; determine (a) which of those areas must be addressed first, (b) which may be addressed later, and (c) which may not need to be addressed at all by the current board; and come up with a proper strategic financial approach to address these areas that is affordable to the association in compliance with its governing documents.

In doing so, in Colorado, the board members have the right to rely upon consultants (reserve specialists, contractors, attorneys, accountants, etc.) and others who may have reliable information about the area of consideration.  A board should utilize such people to help guide its strategic analysis in formulating a proper plan for and adopting proper policies for implementation in their community.

This does not mean the “proactive” approach does not have its own negatives.  It does.  The biggest negative is that it costs money – and may, in certain circumstances, cost a lot of money.  A community association may just not have the financial resources to fund such a proactive approach without harming the owners or property in the community financially.  This approach also requires some forward thinking about issues that simply may never arise, which could lead to accusations that the approach was not reasonable for this community.

However, some forward thinking in this regard is reasonable and appropriate in most communities.  This typically should at least start with analyzing the common element improvements in the community and determining an appropriate reserve strategy for future repairs of such improvements.  After analyzing its current financial status and limitations which its governing documents may place on its ability to levy assessments, an association should determine a reasonable amount of assessments to levy each year.  Increasing assessments annually, even by just a little bit, will help alleviate any surprise in the future should a problem arise that the association must address financially.

Being proactive may very well prevent serious surprises and avoid serious consequences.

Pearson Wollenweber Freedman, LLC is the fusion of Matthew Pearson of the San Antonio litigation firm, Pearson Legal, PC, with Colorado housing litigation lawyers, Wes Wollenweber, and Lee Freedman. Our collective experience is your answer to the difficult issues that housing communities face in this ever complicated world. In short, clients turn to us when their issues are complex and require unique problem solving and extensive trial experience. Clients also turn to us when they want a different approach to the typical legal needs.

By Meaghan Brown, EmpireWorks Reconstruction

Year after year, I’m somehow always surprised by the amount of HOA communities that wait until the eleventh hour to solicit a bid with the full expectation that the project will be completed in its entirety before the first snowfall.  Time and time again, they’re disappointed to hear that the project, which they put out to bid in October, will likely not be able to get done until the following spring.  This is usually the case due to weather, contractor capacity, shortages in materials, etc. The list goes on.  This article outlines a few helpful steps you can take to help you plan ahead for construction projects. 

Step 1: Understand your Board of Directors (BOD) & get BOD buy-in.

At a minimum, the BOD should take a physical look at the work and agree on the desired outcome.  A community’s needs must be fully addressed in the scope and specifications. The BOD should be involved in the scope development, so they know exactly what they are investing in and to ensure proper expectations are set.  Ideally the BODs should walk the project with the manager and bidding contractors to determine details prior to the formal RFP being issued.

Step 2: Know how the project will be funded. 

Before going through all of the hoopla of obtaining multiple bids, knowing where you’re obtaining funding is crucial.  Have a clear understanding of what the board is budgeting for this particular project. If you are unsure of what the ballpark cost of the project looks like, reach out to a trusted contractor for a budget price. If the budgeted cost is higher than expected or outside of the amount budgeted in reserves, plan accordingly by getting a loan, doing a special assessment, or raising the monthly HOA dues.  Due to material cost increases, contractors can usually only hold their pricing for about 30 days.  So, make sure that the project is funded and the board is prepared to move forward before bidding it out to multiple contractors. 

Step 3: Develop a clear and detailed scope of work to send out to bid.

A properly written request for proposal (RFP) is important for various reasons.  Not only does it help vendors understand the board’s expectations and how they would like the job to be outlined or broken out, but it also helps the manager in obtaining apples-to-apples bids from the various contractors.  This reduces back and forth questions from the contractor to the manager. You may want to ask a trusted business partner (such as a contractor or engineer) for assistance.  

Step 4: Schedule a pre-bid site-walk with all bidding contractors. 

Ideally, this happens all at once, with all bidding contractors present at the same time.  By doing this, you’ll ensure that the same details are explained to each of the bidding contractors.  Other ideas, product recommendations, or a more efficient way to attain the desired outcome may be recommended by a contractor, which can then be relayed to everyone on the walk. The bidding contractors may also be able to tell you at this time if engineered drawings are going to be required.  As a helpful tip, you can almost always expect that drawings will be required for things related to life and safety.  This includes railing, staircase, or balcony replacement, as well as retaining walls over 4 feet in height. 

Step 5: Set the proper expectation for the BODs, so they better understand the timeline of turning around a bid.

Once the RFP is received by the account executive, the estimating team reviews the RFP to clarify details.  The estimator will then inspect the property and determine the means/methods for project execution. Once quantified and calculated, the bid is then reviewed for accuracy, feasibility, schedule, exclusions and unforeseen conditions. From there, the account executive formats this information into a bid-packet presentation and delivers the proposal to the manager. During our busy season, it may take up to four weeks to turn around a bid.  From there, it usually takes about 30 days to start the project from the time the executed contract is received. Not to mention, if the project requires engineered drawings, the community manager should allocate another three to four weeks on the front end for the drawings to be prepared.  Below is a general timeline showing how this all pans out.

	TASK	TIMELINE
1	Community Manager and BOD identify the issue and agree upon a desired outcome.	Dependent on BOD
2	If applicable, Community Manager and BOD involve an engineering firm to attain engineered drawings. The firm reviews the project and submits a proposal to the BOD for signature.	2-4 weeks
3	If applicable, the BOD signs the proposal and hires the engineering firm to develop the scope of work and drawings.	2-4 weeks
4	The Community Manager, BOD, and/or engineering firm submit the RFPs to bidding contactors. The bidding contactors review the scope, clarify details, put together the estimate and submit their bid to the BOD.	3-4 weeks
5	The Community Manager, BOD, and/or engineering firm review and compare the bids.  They clarify any questionable details, select a contractor, and submit the signed contract.	Dependent on BOD
6	The contactor receives the signed contract and begins planning logistics.  If applicable, they’ll submit applications for any necessary permits (timeline on this can be several weeks or even months.)  They will then order materials. Depending on the project, this can also take several weeks.	4 weeks
	TOTAL: 2-4 months from RFP to Project Commencement

Step 6: Review all bids for accuracy & schedule interviews.

Once the bids are received, thoroughly review all of them to make sure they are exactly per the RFP.  A detailed step-by-step scope of work, products and equipment being used, exact quantities, and locations should all be clearly outlined in the proposal. Review the bids with the BOD to assure that every bullet point is covered.  I recommend using a bid comparison worksheet to compare.  You’ll then want to interview potential contractors.  Many managers and boards are reluctant to interview and that is a disaster waiting to happen. 

Taking all of this into consideration, it’s easy to see how a project can quickly be pushed back to the following year.  By setting the right expectations for your board, identifying potential pitfalls, and starting the process early on, you can help to better serve your communities and board members alike.

About the author: 

Meaghan Brown is an Account Executive at EmpireWorks Reconstruction, working with HOAs, multifamily, and commercial properties for their exterior, community-wide reconstruction projects.  As an Account Executive, Meaghan acts as the liaison between their production team, the community/property manager, board of directors, and residents throughout the course of each project.  Some of their core services include roofing, carpentry, EIFS/stucco, concrete, painting, decks/walkways, steel fabrication, and construction defect services.