Blog
By Tyson Witkamp, Spyder Construction
Asbestos is a naturally occurring mineral that was once widely used in construction and manufacturing due to its fire-resistant and insulating properties. However, it has since been linked to serious health risks, including mesothelioma, asbestosis, and lung cancer. As a result, strict regulations now govern its use and handling.
If you own or manage a property, particularly one constructed before the 1980s, it’s essential to be aware of the potential presence of Asbestos-Containing Materials (ACMs). Many older buildings may contain ACMs in insulation, flooring, roofing, or ceiling tiles. Surprisingly, asbestos can also be found in some newer buildings and materials.
When Should You Test for ACMs?
Testing for ACMs is crucial in several scenarios:
How to Identify ACMs on Your Property
Asbestos is not visible to the naked eye, and many materials containing asbestos look identical to non-asbestos materials. Here’s how you can identify the potential presence of ACMs:
We recommend all of our clients test their properties if they are uncertain about the presence of asbestos. For projects involving potential ACMs, we prioritize safety by ensuring proper testing is completed before starting any work.
The Importance of Professional Testing and Abatement
Attempting to inspect or remove asbestos without proper training and equipment is extremely dangerous. Professional asbestos inspectors use specialized tools and strict protocols to ensure accurate testing and safe handling of samples.
What is Asbestos Abatement?
Asbestos abatement involves identifying, containing, and safely removing ACMs from structures to eliminate exposure risks. This highly regulated process requires precision, expertise, and adherence to safety standards, such as those outlined in Colorado Regulation 8 (Reg 8), to protect both people and the environment.
Under Reg 8, property owners and contractors must follow a framework that includes proper inspection, notification to relevant authorities, and detailed reporting throughout the abatement process. These steps are crucial for safeguarding public health and minimizing environmental impact.
Reg 8: A Closer Look
Colorado's Regulation No. 8, Part B, established by the Colorado Department of Public Health and Environment (CDPHE), governs asbestos control to protect public health and the environment. Key highlights include:
Why is Professional Abatement Essential?
DIY or improper asbestos removal can release dangerous fibers into the air, putting occupants and workers at significant risk. Partnering with licensed professionals ensures:
What to Look for in an Environment Services Provider
Selecting the right environmental services provider is crucial for ensuring safe and effective asbestos mitigation and abatement. Here are key factors to consider:
A thorough inspection is essential to identify the presence and extent of asbestos-containing materials (ACMs) in a structure. Providers should utilize advanced testing methods to accurately determine the locations, types, and quantities of asbestos. To avoid conflicts of interest, it's advisable to engage third-party companies for these inspections.
Each asbestos abatement project is unique, requiring tailored strategies that prioritize safety, efficiency, and minimal disruption. Considerations should include the occupancy status of spaces, future plans for the area post-abatement, overall construction schedules, and cost implications.
Employing industry-leading tools and containment methods ensures the safe removal of asbestos. Providers should stay updated with the latest advancements in abatement technology to maintain high safety and efficiency standards.
It's imperative that the abatement team is fully trained and certified, adhering to regulations set by agencies such as OSHA, the EPA, and relevant state health departments. A qualified team demonstrates a commitment to maintaining safety and regulatory compliance throughout the project.
By focusing on these aspects, you can select a provider that upholds high standards of quality and excellence, ensuring the health and safety of all parties involved.
About the Author: Tyson Witkamp has extensive experience and expertise in areas such as asbestos abatement, lead paint removal, mold remediation, methamphetamine decontamination, and healthcare infection control. He also established the Environmental Services Department at Spyder Construction, delivering comprehensive environmental solutions.
By Justin Bayer, Knott Laboratory, LLC.
Facility Condition Assessments (FCA), or Building Infrastructure Inspections (as some companies refer to them), have become increasingly more relevant in light of a handful of major, and catastrophic in some cases, structural failures in recent years. This isn’t to say that they should have ever flown under the radar, but as with many examples in life, often times things like proper monitoring and maintenance aren’t top of mind until we see the real-life impact that deferment can have upon our buildings, our communities, our vehicles, our health, and so much more.
What is a Facility Condition Assessment?
So, what exactly is a Facility Condition Assessment? I feel like we can keep things fairly simple here; a Facility Condition Assessment is a report and report card for the civil, structural, and building envelope elements of your building/community. They can also include mechanical elements like HVAC systems, boilers, pipesand more.
Let’s provide a brief overview of these structural, civil, and building envelope elements. Structural elements cover things like stairs, balconies, decks, foundations, parking garages, and retaining walls, to name a few. Civil elements involve grading and drainage, roads and sidewalks, and the earth around your building. The building envelope serves to keep moisture (the building’s archnemesis) out of, well, the building itself, with elements like the roof, the windows, the siding, as well as preventing moisture from entering other areas like parking garages and crawl spaces.
A Facility Condition Assessment provides the building/community with a detailed report about all of the elements listed above, and assigns a grade to them, ensuring that the community knows what state of repair each of those elements are in. A “report card” will also provide the community with the knowledge to navigate what to actually do with those grades. An A grade? Things are good! How about a C or D grade? Maintenance is likely required pretty soon, or even now, so start the process of prepping to repair (which hopefully the community is prepared for through careful planning and the many resources that CAI offers like reserve study companies, banks, and engineers/general contractors).
To engage in this type of service, you can reach out to an engineering firm, many of which are active members of CAI-RMC.
What Type of Property/Building Benefits from a Facility Condition Assessment?
The benefits of having a Facility Condition Assessment are far-reaching. The most obvious candidates are older buildings, with a history of deferred maintenance. Maybe your building was constructed in 1960, or even 1990 (30+ years old now, where does the time go?!), and it hasn’t had much done to keep it up to date; an FCA can be monumental in prioritizing those maintenance tasks, and often times can catch potentially impactful and serious issues.
Other buildings and communities pursue an FCA in order to be proactive and to plan ahead. The cost savings of tackling a future issue before it becomes a current issue are legitimate. Think of it like getting a check up on your vehicle and finding out that it needs new brakes and rotors. That is not an insignificant cost…although it’s a lot cheaper than having the brakes fail while driving and leading to potentially disastrous consequences. The cost delta between proactive and reactive is immeasurable.
Lastly, a new building or community going through something like a developer transition, or coming to the end of their statute of repose, can use an FCA to ensure they are taken care of by a warranty or a developer before the cost of repairs transfer solely to the community.
Why would a board need this type of service if there are currently no concerns, but the building is aging?
Great question, and quite understandable.
Think of it like going to the doctor; you may not know anything is going on and you may feel great. It is not until they draw blood and run some tests that you find out you have a serious illness. The doctors know what symptoms or testing to run to find problems based on your health history, and their education and experiences. Similarly, with buildings, you need somebody who understands how buildings age and deteriorate. These minor signs might mean nothing to the average building resident or homeowner, but they mean a tremendous amount to an expert who diagnoses and witnesses these failures on a regular basis, and who knows what the early symptoms look like. An experienced forensic engineer will know what to look for, diagnose, and get out in front of before these minor issues become major problems, similar to how discovering an illness early can save a life. Diagnosing a major problem early likely does not save a life, but it certainly saves substantially on repair costs.
Speaking of diagnosing problems early, it should not be understated that this does provide substantial cost savings to the community. As we have seen in Florida with the newly established regulations and requirements for condition assessments and funded reserves*, it is very difficult to get financing for major structural repairs. There is no collateral available when a building has financing on it already, so funding major repairs can be a huge problem, whereas incremental increases in expenses that are planned for are manageable for owners.
Furthermore, reserve studies (a truly vital tool) are catching and helping communities plan for routine maintenance costs like replacing boilers or roofing, or repainting the decks, and much more. They are not, however, intended to act as a forensic engineer examining structural degradation of the buildings, nor do they advertise themselves as such. Our buildings are generally designed with around a 50-to-70-year service life, but that requires proper maintenance to achieve. Remember, modern construction is lighter and more economically built than those structures of the Romans, and that means there is less redundancy in the system. If you're planning to achieve this service life, you're definitely going to have rather significant repair/maintenance costs you need to budget for.
Impactful laws, regulations, and requirements are being implemented more often than ever in the wake of the tragedies and lessons of past failures. I implore you to stay vigilant and educated in these matters, as they are truly meaningful to communities, community managers, management companies, and Boards. CAI has a plethora of resources to remain knowledgeable on topics like Facility Condition Assessments. Make sure to take full advantage of those resources; your building systems, and most importantly your residents/neighbors, will thank you for it.
Justin Bayer is the Vice President of Business Development for Knott Laboratory, a forensic engineering firm. He is an active and involved member of CAI in multiple states, including the immediate past president and a current member of the Executive Board for CAI-Rocky Mountain Chapter.
* https://condominiumassociates.com/blog/2024/10/15/understanding-the-importance-of-reserves-for-your-condo-or-hoa-in-2024#:~:text=Answer%3A%20As%20of%202024%2C%20Florida,funded%20to%20cover%20future%20repairs.
By Mandy Thomas, Keystone Pacific
Editor's Note: Wouldn’t the life of a property manager be better if every association could afford to be proactive, instead of reactive? Of course it would, but that is not always the reality, especially with rising costs of materials and labor. However, as industry professionals, we want to do what we can to assist our communities and help plan for the future, if they have the funds now, or not. So, while the work cannot always be done, it is good to have an eye on our communities, and checklists in place to check for preventative maintenance items.
As we all know, this looks different based on the type of community, and while the idea is the same, the process may differ, which is what we will explore below, as we look into the different ways to handle this with townhomes, high rise communities and onsite management.
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The Importance of Common Area Checklists in HOA Preventative Maintenance
Preventative maintenance is vital in all areas of community management, but in an active on-site community, it is especially crucial. The common areas and clubhouse serve as the heart of the community, making proactive upkeep essential to preserving their appeal and functionality.
Preventative maintenance not only extends the lifespan of common area assets, preserves property values, and prevents costly emergency repairs, but it also plays a key role in enhancing residents' quality of life. A well-maintained clubhouse and common areas provide a welcoming space where residents can meet friends for a card game, join a craft class, relax in the spa or simply enjoy some quiet time in the library. The upkeep of these facilities directly impacts resident satisfaction. One of the best ways to stay organized and proactive is by implementing detailed common area maintenance checklists.
Why Use Preventative Maintenance Checklists?
Preventative maintenance checklists serve as structured guides to help community managers and HOA boards ensure that all common areas remain in optimal condition. These checklists help:
Key Areas to Include in Your HOA Maintenance Checklist
While every community is unique in design and the types of amenities that must be maintained, there are core areas common to most on-site communities that require regular attention. Below are essential components for a comprehensive HOA common area maintenance checklist.
1. Landscaping and Grounds Maintenance
2. Sidewalks, Roads, and Parking Areas
3. Clubhouse, Pool, and Recreational Facilities
4. Lighting and Electrical Systems
5. Fences, Gates, and Entryways
6. Stormwater Management and Drainage Systems
7. Fire and Safety Equipment
Implementing an Effective Maintenance Plan
Schedule Annual Maintenance and Cleaning
Conclusion
A well-maintained community reflects positively on the HOA and its residents. Implementing structured preventative maintenance checklists provides a proactive approach to protecting community assets, enhancing property values, and ensuring resident satisfaction. By keeping common areas in excellent condition, an HOA can foster a thriving and well-cared-for community that stands the test of time.
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Mandy Thomas with Keystone Pacific is the General Manager for Heritage Todd Creek, a 55+ active adult community of 1,270 homes in Thornton.
By Callie McDermett, American Heritage Restoration
The construction and maintenance industries have seen significant cost increases in recent years, largely driven by rising labor and material prices. According to the National Association of Home Builders (NAHB), building materials’ prices have risen by 19.2% year-over-year and have increased by 35.6% since 2020. Yet, many communities unknowingly drive-up costs through outdated maintenance policies. With such rapid escalation in prices, HOA boards and community management companies must be strategic about how they handle repairs and maintenance. A key factor influencing long-term maintenance costs is how work orders and approvals are structured—particularly regarding Not-To-Exceed (NTE) limits.(NAHB ARTICLE)
Trends in Material & Labor Pricing
The rise in construction costs is driven by several factors:
Given these rising maintenance and reconstruction costs, HOAs face an essential choice. The right maintenance strategy can control expenses, while the wrong approach could lead to even higher costs in the future. Planning ahead and making strategic decisions about maintenance can help avoid unexpected price hikes and ensure long-term savings.
How Low NTEs Lead to Higher Long-Term Costs
A common issue in maintenance planning is the use of low NTEs. An NTE is a predetermined spending limit that a contractor can use before requiring board approval. When NTEs are set too low, it causes delays and deferred maintenance.
For example, if an NTE is set at $500 or $1,000, even minor repairs may require a proposal, board review, and approval. This can turn a small, inexpensive repair into a much larger, costlier issue due to delays. A simple $600 leak repair delayed by board approvals could escalate into a $6,000 roof replacement due to water damage.
A better approach is to:
Streamlining the Process with an Annual Maintenance Contract
To ensure cost-effectiveness and avoid deferred maintenance, HOAs should vet contractors at the start of the year and select one to handle all NTE-related work and repairs under $10,000. An annual maintenance contract can streamline the process, and should include:
HOAs must hold contractors accountable for clear communication and transparency while ensuring costs are controlled and timelines met. Establishing clear expectations in an annual contract allows contractors to address routine issues promptly while maintaining oversight on larger projects. This proactive approach helps prevent delays and minimize deferred maintenance.
The Bottom Line
HOAs and community management companies must adapt to rising construction costs by improving maintenance and repair management. Increasing NTEs, working with a trusted contractor for routine repairs, and streamlining approval processes will prevent small issues from becoming expensive reconstruction projects.
Developing a proactive maintenance plan allows communities to assess their large project needs well in advance. This provides more time to plan, budget, and phase out larger expenses. Anticipating major projects ensures they are managed efficiently rather than becoming urgent, costly emergencies. By adopting smarter maintenance agreements, communities can save money, reduce long-term damage, and maintain their properties in excellent condition.
About the Author
Callie McDermett has been working for American Heritage Restoration for five years alongside a talented leadership team and industry professionals with over 100 years of combined experience serving the community with roofing & construction expertise.
By Ryan Hurley, AssuredPartners
Preventative maintenance is the cornerstone of effective property management for condominium and townhome communities. Regular upkeep ensures the safety of residents, preserves property values, and mitigates costly repairs down the road. From an insurance perspective, inadequate maintenance can lead to serious injuries and financial liabilities that could have been easily avoided with proactive care. This article will explore why preventative maintenance is critical and how neglecting it can increase the risk of injuries and liability exposure.
The Role of Preventative Maintenance
Preventative maintenance involves routine inspections, repairs, and updates to keep a property in optimal condition. For condo and townhome communities, this includes maintaining shared spaces like walkways, staircases, parking lots, roofs, and mechanical systems. By addressing small issues before they escalate, property managers can avoid substantial repair costs, minimize disruptions to residents, and reduce risks of accidents and insurance claims.
For example, regular roof inspections can prevent leaks that lead to water damage and mold growth, while maintaining sidewalks can eliminate trip hazards. A well-maintained property not only enhances the quality of life for residents but also demonstrates the association’s commitment to safety and reliability.
The Consequences of Inadequate Maintenance
When preventative maintenance is neglected, the risks extend far beyond cosmetic issues. Deferred maintenance can lead to dangerous conditions that threaten the safety of residents, visitors, and contractors, ultimately resulting in injuries and significant liability for the association. Common hazards caused by poor maintenance include:
1. Slip-and-Fall Accidents: Cracked sidewalks, icy walkways, and wet flooring in shared areas are common causes of slip-and-fall injuries. These incidents often lead to costly insurance claims, medical expenses, and potential lawsuits.
2. Structural Failures: Aging decks, balconies, and staircases are prone to collapse if not regularly inspected and repaired. Such incidents can cause severe injuries or fatalities, leading to catastrophic liability for the property owners.
3. Fire Hazards: Neglected electrical systems, outdated fire alarms, or non-functional sprinklers increase the risk of fires. Insurance providers often view these oversights as preventable, and liability exposure can soar if proper maintenance wasn’t performed.
4. Water Damage and Mold: Poorly maintained plumbing or HVAC systems can cause water leaks, resulting in property damage and mold. Mold exposure poses health risks, particularly for those with respiratory issues, and can result in claims for medical costs and property devaluation.
5. Falling Objects: Loose roofing materials, damaged tree branches, or improperly secured signage can fall, injuring passersby and damaging property. Associations may face legal action for failing to address these risks.
Insurance Implications of Neglect
Insurance companies evaluate the risk profile of a property when determining premiums, and poor maintenance significantly increases that risk. When accidents or injuries occur due to negligence, insurers may deny coverage or limit payouts, leaving the association financially vulnerable. Moreover, a history of frequent claims due to inadequate maintenance can lead to higher premiums or difficulty securing coverage in the future.
Associations that neglect maintenance may also face legal action from injured parties. In such cases, courts often assess whether the property owner or association exercised reasonable care in preventing hazards. A pattern of deferred maintenance or lack of proper documentation can result in unfavorable judgments and substantial payouts.
Preventative Maintenance Best Practices
To minimize risks and protect residents, property managers should implement a comprehensive preventative maintenance program. Key components include:
1. Regular Inspections: Schedule routine inspections of critical systems, shared spaces, and structural components to identify and address issues early.
2. Detailed Documentation: Maintain records of inspections, repairs, and maintenance activities to demonstrate due diligence in case of an insurance claim or lawsuit.
3. Budgeting for Maintenance: Allocate funds in the association’s budget for routine upkeep and unexpected repairs to avoid deferring critical maintenance.
4. Compliance with Regulations: Ensure all safety systems, such as fire alarms and sprinklers, meet local building codes and are tested regularly.
5. Engaging Professionals: Work with licensed contractors and specialists for inspections and repairs to ensure high-quality workmanship.
Preventative maintenance is not just about aesthetics—it’s a critical component of risk management for condo and townhome communities. Neglecting maintenance can lead to injuries, increased insurance costs, and legal liabilities that jeopardize the financial health of the association. By staying proactive, property managers and boards can ensure the safety of residents, preserve property values, and maintain favorable insurance coverage. Investing in preventative maintenance today can prevent costly problems and protect the community for years to come.
About the Author: Ryan Hurley is with AssuredPartners Condo/HOA Team. We specialize exclusively in developing insurance solutions, education, and market transparency for Colorado’s community association industry. We look forward to serving the CAI community in 2025.
By Rebecca Zazueta, Windsor Gardens Association
If you have been a community manager for a condominium association for any length of time, you have learned either by firing squad or through repetition what the preventative maintenance to-dos are for your community. Most of us have an annual schedule to ensure it all gets done throughout the year. And if we miss something, inevitably, we will find out the hard way and never let that one to-do slip through the cracks again.
Later in my career, I learned one of the most crucial tools in preventative maintenance is to involve the owners. Rather than safeguarding top-secret maintenance details, continuing to fail to meet unattainable expectations, and paying HOA invoices for preventable repairs and emergency calls, I decided to tell owners like it is and to reinforce that they have skin in the game, too. Condominium living is low maintenance, but it isn’t maintenance-free. Owners might not like the straight talk we provide, but it is a lot easier and more successful in the long run to manage a community with realistic maintenance expectations and to directly communicate, educate, and remind owners regularly.
Here are some examples of how to engage owners in preventative maintenance:
Heat Not Working Calls (hot water heat operated by association): Inform owners to check their unit’s thermostat and heat registers before the cold weather arrives to ensure the heat works normally. Also, be honest about the system design and its limitations. If the system is only designed to heat the unit to 70 degrees when the outdoor temperature is subzero, tell the owners and remind them annually. Both steps will alleviate emergency heat calls during severe weather conditions, and if there are repairs to do, you have a better chance of doing them proactively instead of reactively.
Drain Line Backups and Clogs: Educate owners not to use their garbage disposals if they are the consistent culprit of kitchen sink backups. Let’s face it, people put the craziest things in their garbage disposals, right? We can talk about misuse, hand out mesh drain covers, and encourage owners to throw their sink debris in the trash. Also, tell owners not to use hardware store chemicals to clear clogs in their drains because they corrode the pipes and can create bigger, more expensive issues for the HOA-maintained drain line.
Toilets and Supply Lines: Make an infographic and educate owners to only flush the 3 p’s: pee, poo, and paper. If your drain lines and plumbing are old, tell them to be kind to the drain line by reducing toilet paper use, flushing multiple times when sitting on the pot to provide a little extra water to help the waste get down the drain, and making sure the toilet paper is saturated before flushing to ensure that it breaks down properly.
Remind owners to inspect and replace their toilet supply lines every 5 to 7 years, especially if the toilet supply line has a plastic top that attaches to the tank. Braided stainless steel lines with a metal top are a much better option and will reduce the possibility of massive flooding caused by a bad toilet supply line.
Elevators Out of Service: Inform owners that many elevator challenges are preventable and caused by elevator doors being held open. If the door is held open by a hand or moving boxes are stacked to block the door sensor, the elevator will time out, and a service call is required to get the elevator back into service. In most elevators, owners can typically push the open-door button within the elevator cab, which will not result in the time-out occurring. Most importantly, owners need to know to stop blocking the door when it starts to beep and moves into nudging mode (when the door starts to “nudge” closed).
Breakdown Cardboard Boxes, Throw Away Plastic Film, and Properly Bag Trash: Prevent overflowing recycling dumpsters and overflow and contamination fees from the recycling hauler by informing owners to break down cardboard boxes, deliver excess moving boxes to an offsite recycling facility if the community dumpsters cannot handle the volume, and throw away or recycle the plastic film separately to avoid contamination. Trash chutes and dumpsters don’t get spills and smells if owners bag their trash properly, and rodent issues are minimized.
Rebecca Zazueta, PCAM has been in the HOA industry for 29 years. She is the General Manager of the Windsor Gardens Association in Denver, the largest condominium association in Colorado. Windsor Gardens is a 60-year-old amenities-based community for residents 55 and older, and Rebecca’s home away from home.
By Jacque Martin, Reserve Advisors
Adopted in 2021, the Energize Denver Building Performance Policy underscores the city’s commitment to reducing greenhouse gas emissions by 30% in the next 5 years. The policy applies to multifamily buildings over 5,000 square feet, with stricter compliance requirements for those 25,000 square feet or larger. Applicable buildings must meet specific performance targets by 2030, or else apply for a timeline extension through Energize Denver.
Since 2018, such buildings have been required to conduct annual energy benchmarking. Using the city’s historical benchmarking data, the policy has established a goal for multifamily buildings to reduce and maintain an Energy Use Intensity (EUI) of 44.2 by 2030.
EUI measures a building’s energy consumption relative to its size and is calculated through annual benchmarking. If a building's EUI is above 44.2, it’s time to take action. It is critical for those that are at or slightly above the stated goal to continue to monitor their EUI as they must continue maintain an EUI of 44.2 or below.
Regulation Updates
The energy benchmarking deadline is being extended in 2025 to begin April 1st with the deadline occurring by September 1st. Additionally, properties must include third-party verification on energy benchmark reports either in 2025 or 2026. This will ensure the benchmarking data is accurate and your property is pursuing the correct action to meet the 2030 EUI target.
Prior to 2024, the policy had two interim compliance dates, years 2025 and 2027. Energize Denver is currently reviewing changes to defer the first interim compliance year to 2026 and remove the 2027 interim compliance. The intent of these changes is to provide greater flexibility with developing a path towards compliance while also ensuring accountability or progress towards the long-term goals of Energize Denver. While long-term goals are consistent across all buildings, interim target goals are unique to each building and are established by the city. You can find your building’s interim EUI goal as well as your current EUI at lookup.energizedenver.org.
Major additional proposed changes to the current policies include lower penalty rates, a new option for custom target adjustments, and a more robust appeals process. The city expects to finalize and adopt the updated rules by the end of March 2025.
What’s Next?
While many modern buildings and recent conversions are more energy efficient than older buildings with dated infrastructure, they are not exempt from meeting the 2026 interim compliance goal and the 2030 target goal. If your EUI is above the target threshold, action is necessary to avoid non-compliance. The following steps can ensure your building is on the right path forward.
Step 1: Consider an energy audit
The most common audits are the ASHRAE Level I and Level II energy audits, both which focus on key building systems including HVAC, building envelopes, lighting, water heating efficiency, and more. A Level I audit is the least extensive, providing a walk-through assessment of the building and identifying potential energy-saving opportunities with general cost savings. A Level II audit is more comprehensive and identifies specific cost-effective energy-saving measures and associated ROIs.
These services provide qualitative and quantitative energy saving measures so building stakeholders can make the most informed decisions when evaluating which energy improvement to undertake. A building near the EUI threshold may find a level I audit sufficient. However, buildings that require significant improvements in EUI by 2030 will benefit most from a level II audit. The goal is to identify the most impactful areas for energy savings and long-term improvements.
Step 2: Develop an implementation plan
Boards should prioritize upgrades based on their ability to lower the building’s EUI score and meet both the 2026 interim goal and the 2030 compliance target. With an audit in hand, it is essential to include your reserve study consultant in future collaboration with your energy consultant as this team of professionals is critical to building a sound strategic plan.
Working with your reserve study provider, energy improvements can be coordinated with planned maintenance or system upgrades. This is a cost-effective way to improve your buildings’ overall energy performance. Your reserve study and subsequent updates can help identify areas where future upgrades should be considered and budgeted for through reserves.
For example, a building’s 15-year-old boiler may be functioning fine and have a remaining useful life of eight- to ten-years, but the energy audit may find that it is highly advantageous to replace the boiler with a modern, more efficient system in the next one- to two-years to meet energy compliance. In this case, the reserve study would evaluate the decision to move replacement timing up prior to end of the functional useful life. Thus, the building will meet energy compliance targets while also ensuring long-term financial stability for the property.
Step 3: Communication with Unit Owners
Keep unit owners informed and engaged throughout the process. Regular updates on energy performance, planned improvements, financial implications, and progress toward compliance goals will help maintain transparency and support for the project overall.
A Look Ahead
Although the 2026 and 2030 deadlines may seem far off, making energy-efficient upgrades requires time for planning, implementation, and financing. By taking action now, your community can spread costs over time, leverage its capital reserve study plan, benefit from current incentives, and see energy cost savings sooner rather than later. Most importantly, you’ll position your property for long-term value in an increasingly energy-conscious market. Stay up to date with the latest information by visiting energizedenver.org.
Authored by: Jacque Martin
Founded in 1991, Reserve Advisors specializes in capital planning solutions for community associations across the United States. The firm has partnered with over 19,000 community associations to help them understand the true cost of property ownership through its comprehensive reserve study, energy benchmarking, and energy auditing services.
By Marcus Wile, Orten Cavanagh Holmes & Hunt, LLC
The Americans with Disabilities Act (“ADA”) is a civil rights law enacted in 1990, and subsequently amended, with the aim to protect people with disabilities from discrimination. The ADA provides protections to disabled people in several domains including public accommodations, employment, transportation, communications, and government services. The domain of public accommodations is the area most potentially applicable to common interest communities in Colorado. As a threshold matter for discrimination under the ADA, a person must “(1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities.” Weil v. Carecore Nat., LLC, 833 F. Supp. 2d 1289, 1296 (D. Colorado 2011); 42 U.S.C. § 12102(1).
Public Accommodations
Title III of the ADA prohibits discrimination on the basis of disability in the activities of public accommodations. Pursuant to 42 USC § 12181(7), a place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within one of the twelve categories set forth in the regulation. Categories relevant here include: (1) places of lodging including inns, hotels, or motels, or facilities that offer similar amenities to the foregoing; (2) places of public gathering; (3) places of recreation; places of exercise. The categories listed in the regulation include representative examples of each that are meant to be illustrative, not exhaustive. Common interest communities are not generally considered places of “public accommodation” as facilities or amenities in the community that are generally restricted to residents and guests of residents and, therefore, are not subject to the provisions of the ADA. However, common interest communities can become subject to the ADA if the association opens its facilities to the public. Common examples of whencommunities may become subject to the ADA include:
If the community allows members of the public to use the pool or other recreational facilities by purchasing passes.
If the community allows schools, clubs or other organizations to use community facilities on a regular basis or leases the premises to them.
If the community maintains a rental office on the property that is open to the general public.
In the vast majority of typical cases, however, those facilities are not open to the public. Thus, the ADA would not apply. On the other hand, these facilities may be considered and treated as “public accommodations” and subject to the ADA if they are open and available to the “public” – i.e., individuals who are not residents, guests or invitees of residents living in the community. Each of the examples above would likely subject the Association to the mandates of the ADA, including modifying all such areas open to the public to comply with applicable ADA requirements and standards for accessible design.
Whether the Association uses the term “pool passes,” “pool licenses,” or “pool memberships” is immaterial.
The Americans with Disabilities Act Title III Technical Assistance Manual issued by the U.S. Department of Justice states that areas within a private residential community “qualify as places of public accommodation [and] are covered by the ADA if use of the areas is not limited exclusively to owners, residents and their guests”.
The Technical Assistance Manual illustrates this point by giving specific examples of facilities that are considered public accommodations, including the following:
ILLUSTRATION 1: A private residential apartment complex includes a swimming pool for use by apartment tenants and their guests. The complex also sells pool “memberships” generally to the public. The pool qualifies as a place of public accommodation.
ILLUSTRATION 2: A residential condominium association maintains a longstanding policy of restricting use of its party room to owners, residents, and their guests.
Consistent with that policy, it refuses to rent the room to local businesses and community organizations as a meeting place for educational seminars. The party room is not a place of public accommodation. The examples given are not exhaustive, and use of the term “memberships” when referring to the pool is inconsequential. Rather, the test to determine if ADA applies is whether access to the pool is limited exclusively to owners, residents and their guests. If not, the ADA will likely apply. The same general analysis would apply for non-physical spaces such as a community’s website.
Generally, if a facility or amenity is considered a “public accommodation,” it must be brought into compliance with the ADA’s accessibility standards and requirements. There are limited exceptions for buildings and/or facilities constructed before January 26, 1993. However, the ADA still requires the community to remove physical barriers where “readily achievable” for older facilities (i.e., those built before January 26, 1993). “Readily achievable” is defined under the ADA as “easily accomplishable and able to be carried out without much difficulty or expense.” Failure to remove barriers “where readily achievable” constitutes discrimination under the ADA.
While the ADA may not apply to your community, the Fair Housing Act (“FHA”) still may. If you have questions regarding your community’s obligations to permit reasonable accommodations or modifications, please consult your community’s attorney for specific guidance. Marcus Wile is an attorney with Orten Cavanagh Holmes & Hunt, LLC where he focuses on all manner of litigation matters in addition to general counsel representation of common interest communities. Marcus is a frequent speaker at educational events for community association boards of directors and managers and is a member of the CAI-RMC Editorial Committee.
By Joe Smith, Burg Simpson Eldredge Hersh Jardine, P.C.
Among the most feared phrases to be uttered in a common interest community is “construction defect.” A construction defect is generally defined as a condition resulting from a flaw in design, workmanship, or materials that reduces the value of a structure or threatens the safety of its occupants. Once identified, construction defects have to be taken seriously and without delay. Although “construction professionals” (as defined Colorado’s Construction Defect Action Reform Act) are afforded at least two opportunities to resolve potential CD claims before an Association can file a CD lawsuit, every Association that finds itself with defects should assume that litigation is likely to occur.
Potential Benefits of CD Litigation
The greatest potential benefit to an Association and unit owners in successfully pursuing CD Litigation is the recovery of funds by negotiation, settlement, trial, or arbitration that allow the Association to permanently repair the defects at issue at the expense of those who are responsible for them, rather than depleting reserves or specially assessing the unit owners. By being able to make these repairs, the Association avoids the downsides identified below.
Additionally, if the Association prevails in the CD Litigation a court or arbitrator may order the construction professionals to reimburse the Association for its litigation expenses (e.g., the cost of expert witness investigation, reporting, and testimony; filing fees; and deposition costs that have to be paid as they become due). The court or arbitrator may also order the construction professionals to pay the Association’ attorney fees. Awarded litigation costs and attorney fees are in addition to repair costs and any other legal damages the Association recovers.
Potential Downsides to CD Litigation
There are several potential downsides to an Association not pursuing CD Litigation when preliminary investigation identifies construction defects that will require significant repairs. Among the most significant downsides are:
How Does an Association Determine if CD Litigation is Warranted?
Whether or not construction defects exist in a community is usually beyond the knowledge of a community manager, Board members, and unit owners. Fortunately, a number of Colorado forensic engineers and architects, repair contractors, and CD attorneys specialize in working with Associations to help identify defects in common elements and determine if CD litigation may be necessary.
Initially, the CD attorney usually retains a forensic engineer or architect and/or specialty repair contractor to perform visual observations of the exterior of the community and possibly a small number of unit interiors. These experts look for and document visible defects, damage, or distress. With that information in hand, as well as the Association’s Declaration and any amendments, the CD attorney can advise the community manager and Board about the types and scope of defects, the impact of applicable time limits on the CD claims, statutory processes that must be complied with before initiating CD Litigation, and any additional pre-litigation processes the Declaration may require the Association to follow. As part of this discussion, the CD attorney should tell the community manager and Board whether retaining the attorney to handle all applicable pre-litigation requirements and, if necessary, file a CD lawsuit is warranted. Ultimately, the decision rests with the Board, which should ask the CD attorney any and all questions that come to mind about the pros and cons of pursuing a CD lawsuit.
Building a common interest community is a complex undertaking that requires meticulous planning followed by strict observance of construction best practices. Serious construction defects can – and often do – occur. An Association that discovers construction defects should consult with CD Litigation experts as early as possible to assist an Association in weighing the potential benefits and downsides of CD Litigation and, ultimately, to hold the declarant, builder, and/or other parties liable for repair cost and other damages.
About the Author: Joe Smith is a senior attorney in the Construction Defect Group at Burg Simpson Eldredge Hersh and Jardine. Joe is also a licensed architect and has represented Colorado homeowner associations and homeowners since 1999.
By Tim Moeller & Britton Weimer, Moeller Graf, P.C.
The business-judgment rule is an important legal doctrine in Colorado that applies to directors of common interest communities. Most often, the business-judgment rule is used as a defense to complaints pertaining to discretionary board decisions. The business-judgment rule requires courts to defer to corporate deliberations and avoid second-guessing the good-faith decisions of directors.
Legal Overview
The business-judgment rule “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in furtherance of a lawful and legitimate furtherance of corporate purposes.” Hirsch v. Jones Intercable, Inc., 984 P.2d 629, 637 (Colo. 1999). The rule recognizes the practical reality that courts “are ill equipped and infrequently called on to evaluate what are and must be essentially business judgments.” Id. at 638.
“Courts presume that a corporation’s directors possess the expertise and knowledge to make business decisions.” Walker v. Women’s Professional Rodeo Ass’n, 498 P.3d 648, 658 (Colo. App. 2021). However, the rule does not confer blanket immunity – it does not protect directors who engage in “fraud, self-dealing, unconscionability, and similar conduct” that is “incompatible with good faith and the exercise of honest judgment.” Id.
Generally, directors are afforded wide discretion in making decisions for the association, and if a director acts in good faith, such actions should not form a basis for imposing liability on that director. However, the business-judgment rule does not extend to transactions where the director has a conflict of interest, such as the director’s use of corporate funds for personal benefit.
The business-judgment rule extends to nonprofit organizations. "In the absence of some clearly arbitrary and unreasonable invasion of a member's rights, courts will not review the internal operation and affairs of voluntary organizations." Jorgensen Realty, Inc. v. Box, 701 P.2d 1256, 1258 (Colo. App. 1985). “Courts are reluctant to intervene, except on the most limited grounds, in the internal affairs of voluntary associations." Bloom v. Nat’l Collegiate Athletic Ass’n, 93 P.3d 621, 624 (Colo. App. 2004).
Community associations are especially well positioned to invoke the rule, because of the discretionary nature of many board decisions. “Unlike other types of contracts that require specific acts at specific times by contracting parties, covenant enforcement may require the exercise of discretion as to both the timing and the manner of enforcement.” Colorado Homes v. Loerch-Wilson,43 P.3d 718, 723 (Colo. App. 2001). Indeed, in Colorado Homes, the Court recognized that the business-judgment rule may apply to claims against community-association directors for breach of contract and breach of fiduciary duty.
Thus, for community association boards, the business-judgment rule provides a vital defense to many claims for negligence, breach of contract and breach of fiduciary duty when performing board obligations. However, it rarely provides a defense to intentional torts such as fraud, to claims for conflicts of interest, or to actions that exceed the board’s authority under Colorado law or the governing documents.
Practical Tips
For HOA directors, the business-judgment rule provides some degree of comfort. If they can demonstrate that disputed actions were done in good faith and consistent with the governing documents and Colorado law, they will normally have a solid defense to a negligence action.
As is so often the case in preventing litigation, one key is to carefully document the material decisions, when they happen, before any lawsuits are filed. While it is often unfair, judges and juries may think that, if it wasn’t put in writing at the time, then “it probably didn’t happen.”
The board will have additional protection when it consults experts on specialized matters beyond the knowledge of the board, such as engineering, legal, investment, and accounting decisions. When the directors follow an expert’s advice, it is difficult for third parties to later second-guess the decision and show bad faith. Written opinions by experts are especially helpful.
Finally, as a risk-management backstop in case the court finds the business-judgment defense inapplicable, it is always prudent to have Directors & Officers and Commercial General Liability insurance, to help cover lawsuits that make it through the business-judgment shield.
Tim Moeller has been practicing community association law for 25 years. He and David Graf started Moeller Graf, P.C. in 2005. The firm solely represents Colorado community associations.
Britton Weimer is an experienced litigation, transactional and insurance attorney representing community associations with Moeller Graf in Englewood Colorado.
