By Joel W. Meskin, Esq., CIRMS, CCAL Fellow, MLIS, McGowan Program Administrators
Volunteer board members are often baffled and incredulous when someone challenges or complains about a decision that they have made, a rule that they have been changed, or a special assessment that they have issued. I have touched in one way or another between five and six thousand claims and/or lawsuits against community Associations and their volunteer board members. As I travel around the country, people ask me what I have been able to distill from all these claims. Without skipping a beat, I respond by telling them that "ignorance is not bliss"!
The "ignorance" I refer to is twofold. First, unit owners do not read the governing documents they have agreed to comply with prior to purchasing their home in a common interest association. In most cases, these unit owners probably do not read the governing documents until they have an issue with the board, the association or their neighbors.
Practice Pointer 1: read the governing documents before you buy; ignorance of the governing documents is not a defense and an association member is presumed to have read the documents he or she has agreed to when they purchased their unit.
Second, the volunteer board members turn their volunteer board position into something beyond its purpose and their authority. This is further exacerbated by the fact that these volunteer board members are often the same unit owners that have not read the governing documents.
Practice Pointer 2: Each association member who wants to join the board should be required to confirm that he or she has read the governing documents before agreeing to become a board member.
What comes to mind each time this twofold dilemma comes up is a pearl of wisdom my father used to share with me. He would say "why do people never have time to do things right in the first place, but always have time to fix them"?
Practice Pointer 3: Each board should have an annual board training, even those who have been on the board. The value of an annual training far outweighs the cost, if any, as well as the effort. Both items will lead to both monetary and time savings when the board knows how to operate the board. The National CAI has great resources as well as on demand video courses on training. There is no excuse for not taking the time to prepare for a board position.
I tell boards and managers that in the normal course a board meeting should not take more than an hour. Yes, certain issues create exceptions, but that should in fact be an "exception." In response, I often hear "yah, right." The key is for board members to understand their obligation, responsibility and treat the management of the association as the business it is.
The board is a body comprised of individuals that is charged to manage the association pursuant to the by-laws and relevant statutes. The board is a body that makes decisions and policies and delegates to the individual who will carry out the delegated matter. When a board member exits the properly noticed board meeting, they have NO authority to act in their capacity as a board member except pursuant to the delegated authority expressly given them by the board during a properly noticed board meeting, or proper consent to act without a meeting. Remember, each board member has "one" vote whether he or she is also an officer of the association such as the president, Vice President or other.
Most delegated tasks by the board are given to the community association manager if there is one, or employees. Sometimes, there is no CAM or employee, and the action is delegated to a volunteer board member or other association member volunteer. In that case, the board member is carrying out the delegated action as a "volunteer" and not in his or her capacity as a board member.
Practice Pointer 4: Remember, a board member is not an employee, and apathy is not a defense. If the board member says I have to do it, because no one else will. However, if no one else will, there is a deeper issue that must be addressed, because again the "volunteer board member or "other volunteer" is not an employee. If no one will step up, the board should hire a management company or an employee. If the board is not willing to do that, then the board should go to court and seek a receiver which will end up costing the board and the association the money they did not otherwise want to spend. At the end of the day, the board is charged with protecting the association's assets and must take the steps to do so.
In addition to understanding the role as a board member, the following are additional practice pointers that will help simplify and shorten a board meeting and mitigate claims.
Understanding the board's duties and obligations and making sure unit owners receive, read and ask questions about governing documents is the best risk management tool the association can use.
By Joel Sebern, Lallier Construction, Inc.
A roof system is the most vulnerable part of a building's exterior. Extreme Colorado temperature changes, along with wind, rain, hail, and snow all affect a roof system's performance.
Performance of a roof is based on good design, quality materials, proper installation, and a preventive maintenance program. Roof maintenance is critical to preventing roof problems and keeping the roof in watertight condition. Early identification and repair of roof problems will help provide a long lasting roof system.
If your roof has been impacted by hail or wind, below are a few tips to help you through the process of restoring your roof system.
• A permanent place of business
• Experience with many styles of roof systems
• Proof of insurance / license
• Quality company safety program
• Evidence of industry professionalism such as proof of training and manufacturer certifications
• Financial stability
• Submit a written, detailed proposal
• Valid warranties on labor and materials
• References in Colorado (Proceed with caution if the contractor only provides out-of-state references)
• Maintenance programs
**Please be aware of contractors who will only accept cash payments and “up-front payments” before materials are delivered to the site.
Lallier Construction, Inc. has been roofing in Colorado’s climate since 1989. We offer free consultations, inspections, and estimates at times that best fit your busy schedule. Lallier Construction provides its services in both the Residential and Commercial Sectors. Services we provide are New Construction, Re-Roof, Warranty Claims and Insurance Claims.
By Timothy M. Moeller, Esq. and Bujar Ahmeti, Esq., Moeller Graf, P.C.
As the snow begins to melt and people trade their ski poles for sunblock, community associations across Colorado will begin to turn their attention to opening their swimming pools. While everyone loves to have fun in the sun, maintaining and operating a swimming pool may present legal challenges for community managers and boards of directors. While some issues are unique, there are some questions that arise fairly regularly. Below you will find what a typical conversation may look like.
A local swim league approached the association and asked if it could use the pool to host its swim meets. Are there any legal issues of which we should be aware?
Typically, community association pools are private, and as such, are not subject to Title III of the Americans with Disabilities Act (“ADA”). Allowing a local swim league (and its supporters) to use the association’s swimming pool may transform the swimming pool from a “recreational facility” to a place of “public accommodation.” As a result, the association would have to ensure the swimming pool was compliant with Title III of the ADA. This was confirmed by the Department of Justice in a published Q&A regarding ADA accessibility where the DOJ stated that if a swimming pool/club located in a residential community is made available to the public for rental or use, then it is covered under Title III of the ADA. A pool categorized as a “public accommodation” would have to meet the ADA Standard for Accessible Design, which provides:
We have concerns about keeping the pool sanitary for all of our residents if we allow children in diapers to use the pool. Can we implement a rule that prohibits any person under the age of 4 from using the pool?
Even rules with the best intentions can find disfavor with the law. The Fair Housing Amendments Act (“FHAA”) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status and disability. Familial status is defined, in pertinent part, as “one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individual or individuals.” Some ask, “How can we be discriminating against families with children if we will allow children who are at least 5 years of age to use the pool?” When reviewing a rule or regulation for a potential fair housing discrimination claim, a reviewing court will look to whether there is a less restrictive measure to accomplish the association’s objective. Here, instead of enacting a rule adopting a complete ban on children under a certain age for sanitary reasons, an association is better served to promulgate a rule requiring an incontinent person or child who is not fully toilet trained to wear appropriate swim diapers or other appropriate waterproof sealing undergarments when entering the pool.
A homeowner who is disabled attended the board meeting last week and requested the pool be modified by installing a chair lift so that the homeowner can use the swimming pool. Does the board have to allow installation of the chair lift, and if so, who pays for it?
Under the FHAA, a community association may not discriminate against anyone with a disability by treating said person less favorably than those that are not disabled. The association must permit disabled persons to make reasonable modifications to existing dwellings or common areas that are necessary to afford the disabled person full enjoyment of the dwelling. A “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. However, an association can place reasonable conditions on the modifications. These conditions include requiring the disabled person to: (1) provide a reasonable description of the modifications; (2) provide reasonable assurances that the work will be done in a workmanlike manner; (3) make the modifications in accordance with the association’s reasonable aesthetic requirements that do not increase the cost of the modifications; and (4) obtain any required building permits. Generally, the requestor is responsible for the cost of the reasonable modification.
As is the case with operating any common area within a community association, a community swimming pool requires more than just proper chlorine levels to properly function. Of course, a community association can mitigate any potential risks by ensuring compliance with its governing documents and any federal or state laws.
Timothy M. Moeller is a founding partner of Moeller Graf, P.C. and has practiced community association law exclusively since 1999.
Bujar Ahmeti is an associate attorney at Moeller Graf, P.C. whose practice is dedicated solely to addressing the needs of Colorado community associations.
By Casey Colvin, Heritage Roofing and Contracting, LLC
When the Colorado winter begins weakly whimpering its way toward us at a leisurely pace, there is no better time to consider those pesky preventative maintenance items we’ve put off to enjoy our prolonged fall Season. When looking at our community through the lens of maintaining a space shuttle it’s easy to over-inspect, over-repair and over-worry. When encountering this mindset, try to remember a little acronym we call “ARG!”
Typically, the easiest way to prevent future problems is to review the current ones; walking through a community looking for debris fallen from roofs, rust around existing roof penetrations, stains from downspouts on concrete, and any landscaping that may be washing out or concrete that has heaved. These tell-tale signs are often the beginning of a larger problem and a great place to start the hunt for pre-emptive repair. Once you’ve compiled your list you can work from the top down.
Inspect those roofs! Now I don’t mean walk around and enjoy the view, rather hire a licensed roofing contractor to inspect and document any real issues that may be present in the future. Areas to pay particular attention to are communities with flat roofs and tile roofs. While shingles can often be maintained with minor sealant touch up, a new pipe boot, or a replacement shingle, tile roofs and flat roofing membranes come with maintenance items all their own. Especially on units where mechanical equipment has been serviced; ask your contractor to inspect for tile breakage or excessive wear on flat membranes as high traffic areas will present leaks first. Also, ask your contractor to document any flat roofing membrane that is shrinking from the walls and any areas where water may be pooling in excess. If these items are not corrected quickly, costly repairs are sure to follow.
Get those gutters cleaned, because there is nothing worse than an overflowing gutter creating a skating rink in your community. Short of encouraging the Avalanche to enjoy your new practice rink, there is a large liability in slips, trips, and falls. Pay special attention during the cleaning as areas with larger build-up of debris are likely great candidates for a gutter guard system. By installing the gutter guard, you can eliminate a substantial amount of year after year gutter maintenance costs and keep that water where it belongs.
Don’t forget the downspouts. These lateral drains are responsible for the lions-share of gutter overflows and are too often overlooked. Pay special attention to any downspout that drains into an underground pipe. If not properly cleaned and maintained they are prone to clogging, breakage, or blockage from vegetation growth. Be sure the contractor performing this repair takes the time to find the drain outlet, otherwise prepare for the flood!
By Justin Bayer, Caretaker Landscape and Tree Management
Spring is officially upon us, and that means it is time to get your landscape ready for the growing season and cleaned up from the fall and winter. April is arguably the most important time of the year for landscape in Colorado, and that is because there are many steps that need to be taken in order to set your community up for success.
Getting the proper start to your landscape maintenance is absolutely vital, and by following the tips and advice above you can ensure that your community will look healthy, green, and gorgeous all spring and summer!
Caretaker Landscape and Tree Management is a privately owned and operated company with locations in both Colorado and Arizona. Caretaker has been in business for over 30 years, and have built their reputation on customer service, exemplary communication, and through utilization of cutting-edge technology.
By Andrew Loyola, Denver Elevator Company
An overwhelming number of owners and managers I speak with are either dissatisfied with the performance of their elevators or frustrated with the lack of communication from their maintenance provider. “I never see my mechanic but I sure see the invoice”. “The inspector just came and all my tests are past due”
Here are some basic steps to follow to improve your elevator experience:
To prolong the life of your equipment, ensure your mechanic communicates well, checks in and out and keeps you informed, doesn’t miss maintenance visits, keeps car tops, pits and machine rooms clean and painted, timely performs annual safety tests and documents performance in the onsite MCP log.
If your building is over 25 years old and the elevator equipment is original, it’s a good idea to start planning and budgeting for an elevator modernization. How soon is an unknown? It really depends on the usage, type of equipment and how well it’s been maintained. The good news is, authorities having jurisdiction in your area will only mandate elevators be brought up to current code if you make a major alteration to the equipment, change in speed, capacity, controls just to name a few.
Also, the State of Colorado Conveyance Division and the Denver Fire Department are implementing a couple of code changes everyone needs to be aware of.
Andrew Loyola has over 30 years’ experience in the elevator industry and is President and Owner of Denver Elevator Company.
By Peter O’Brien, President Solutia Adjusters
In general, property claims should be filed when there is a benefit to the insured for filing a claim and should be avoided when there is little or no benefit to be gained. It is beneficial to the community to complete the steps below before filing a property damage claim, whether for a small water leak or a major hail event, since the repercussions of incorrectly filed claims can be significant for the long term financial solvency of the community:
Verify that there is actual damage and confirm the extent of anticipated damage: Too often claims are called in for the wrong thing and/or for damage that is much less severe than anticipated.
Confirm the date that the loss took place: Calling in a claim for the wrong date of loss can cause problems, including filing a claim with the wrong insurance company.
Verify there is coverage for the loss or damage: Exclusions and coverage limitations exist in every insurance policy that could limit or exclude certain types or aspects of loss.
Form a reasonable expectation of outcome: Before filing a claim it is best to have at least a reasonable expectation of the size of the loss and what benefit the community can expect after application of the deductible and any applicable policy limitations or exclusions.
Meet the policy deadlines and timelines: There are requirements in most policies that claims be filed as soon as it is reasonably known that a claim is necessary. Once damage is known, it is important to move quickly through the decision-making process and file the claim on time.
If you are unsure about a particular situation or have questions about claim best practices for Community Associations, please let us know.
Peter O’Brien a founding partner of Solutia Adjusters. He managed large and complex claims for over nine years and provides proactive training and claims resolution solutions for communities and commercial property owners.
By Ryan Gager, Hearn & Fleener, LLC
The new year is upon us and it remains to be seen if 2018 will bring more changes to construction defect litigation. After years of both sides battling, 2017 saw two major decisions in the construction defect industry. First, was the introduction of House Bill 1279, a step towards construction defect litigation reform. Whether it was a step in the right direction or a step backwards probably depends on who you ask. The bill was touted as a bipartisan effort toward addressing the housing squeeze in Colorado. Construction defect has long been a hot topic in Colorado as developers and builders cite how easy it is for homeowner associations to sue, along with the high cost of insurance as the reasons there are very few condominiums being developed throughout the state. Homeowner associations and those representing them argue that it is their only recourse when a building isn’t built correctly.
HB 1279 requires that a unit owners’ association obtain approval through a vote of unit owners before filing a construction defect claim. The bill requires an association to notify all unit owners and the developer or builder of a potential construction defect action, call a meeting where both the HOA and developer or builder have an opportunity to present arguments and potentially remedy the defect, and obtain a majority vote of approval from the unit owners to pursue a lawsuit before bringing that lawsuit against a developer or builder.
If you are a homeowner in a community that always wanted to be more involved or know what was going on, this bill ensures that. All owners will be notified of a potential claim, and all will have a voice in a community-wide vote. Majority approval of the owner vote does not include nonresponsive owners and the court will determine whether diligent efforts were made to contact the owner, whether mail was undeliverable, whether the owner is occupying the unit, and if other contact information such as email or a phone number were used. All of this means that unit owners should keep all records and contact information up-to-date with their HOA, to ensure they can be part of the vote.
The other significant development in construction defect litigation last year, was the Colorado Supreme Court’s decision in Vallagio at Inverness Residential Condo. Ass’n, Inc. v. Metro. Homes, Inc. The issue was whether a condominium developer can place a provision in the project’s governing documents, a provision that requires that any dispute with the developer be summitted to binding arbitration and prohibits the condo unit owners from amending the document to remove that provision. The state Supreme Court ruled that the homeowner association was wrong to sue the builder after disregarding bylaws, including the provision, that require binding arbitration to settle claims of construction defects.
The building industry favors binding arbitration as a more streamlined way of dealing with allegations of defects. However, HOAs and those representing them argue that this decision gives too much power to developers and builders. It remains to be seen if developers and builders will now use this decision to place provisions in governing documents of all developments.
Whether these decisions are considered victories for developers and builders or not, developers and builders still need to continue to implement successful strategies to mitigate risks of construction defect litigation. These include third-party inspections, insurance programs, familiarity with state code and standard requirements, disclosures to homebuyers and turnover procedures to associations.
The one thing we do know is, based on the decisions and outcomes of 2017, we are a long way from a definitive solution to construction defect in Colorado.
Ryan Gager is the Director of Marketing at Hearn & Fleener, LLC, a construction defect firm serving all of Colorado.
By Matthew Pearson, Wes Wollenweber, Lisa Greenberg, Gravely Pearson Wollenweber Freedman, LLC
As many managers and certain board members know, condo and townhome associations are often involved in difficult disputes with their insurance carriers over significant property damage resulting from catastrophic weather events. These disputes unfortunately can result in lengthy court battles, many of which are in federal court. Catastrophic weather is truly on the rise in Colorado. Consequently, these disputes are not going away. The disputes are often incredibly similar: a condo community suffers damage from a major storm, such as hail and/or high winds, and contractors or public adjustors provide estimates of the damage to property owners in response to the low estimates prepared by the insurance companies or their representatives. To combat this problem, managers should know that Colorado has a relatively new but powerful statute that punishes insurers for unreasonably denying and/or delaying payment on valid claims (Insurance Bad Faith). Because this statute exposes an insurer who violates it to significant financial exposure, insurance companies are fighting these lawsuits vigorously.
Certain trends are resulting from these legal battles. Among these emerging trends are insurance companies’ reliance on two policy provisions. These provisions are in nearly every commercial policy that covers a multifamily community, and insurance companies are claiming in litigation that homeowner associations are violating these provisions. The first provision requires policyholders to “promptly” notify their insurance company in the event of a loss. The second provision, commonly referred to as a fraud clause, arguably prohibits misrepresentations during the claims process.
Under the prompt notice provision, insurance companies try to defeat a breach of contract claim (based on denial or underpayment of a claim) by arguing that the policyholder failed to promptly notify them of the loss and therefore somehow caused the insurer some type of harm. Insurance companies are making the argument that multifamily community policyholders are obligated to take steps to inspect for weather damage as part of ordinary maintenance and that the failure to do so violates this provision. While it is not known yet how our courts will ultimately view this argument, it is important to be aware of this litigation trend.
While most, if not all, insurance policies do not require routine inspection for weather related damage, periodic photographs or video inspections, especially if used to compare to previous photo and video inspections, can help identify exactly when the damage occurred, preventing any prompt notice arguments. The lack of routine inspections can sometimes result in a community discovering weather related property damage months after the actual weather event occurred because the damage is not obvious and did not cause any leaks. Insurance companies are arguing that the lack of such routine inspections is somehow a breach by policyholders even though the insurance policies require no such routine inspection. It remains to be seen how federal and state judges will view this argument.
Under the fraud provision, insurance companies are working hard to establish what they call “reverse bad faith” by arguing that associations and their vendors are misrepresenting key facts or intentionally inflating estimates during the claims process. Insurance companies are developing these arguments to potentially recover insurance proceeds they have already paid under the pertinent policy. One of the reoccurring legal theories insurance companies have put forth involve allegations that the association’s roofing contractor has padded its estimate and, thus, padded the association’s claim.
In addition, as many community managers and board members know, because of the nature of these claim disputes, more and more communities are turning to Public Adjustors to serve as their advocates in the claims process. Certain insurance companies are fighting hard to paint a picture that Public Adjustors are conspiring with roofing contractors, and even the association’s community managers to inflate the value of the insurance claim. The insurance companies even cite to community management contracts that allow managers to earn a fee for assisting with the association’s claim as evidence of fraud or at least an incentive to inflate damage estimates.
Based on these trends, Associations, as policyholders, should be diligent to periodically document the condition of their community by photos or video. In the event of a loss, notify the insurance company as soon as possible and make sure that one person is designated to communicate with the insurance company or their adjuster. If the community needs to hire a contractor or public adjuster to assist them with the claim, make sure they are qualified and have experience evaluating and repairing damage. Insurance claims are often frustrating and time consuming. However, the Colorado law is in place to help policyholders obtain what they bargain for in paying premiums: fixing their property damage.
By Ashley M. Nichols, Cornerstone Law Firm, P.C.
Believe it or not, the electric car has a long and storied history dating back to the 19th century when inventors across the globe started tinkering with building cars which would run on electric power. In 1891, William Morrison of Des Moines, Iowa built the first successful electric automobile in the United States.
However, with the introduction of Henry Ford’s gasoline powered Model T in 1908 and the invention of the first practical electrical automobile starter in 1912 (which made gasoline powered vehicles more alluring because it eliminated the hand crank starter), the vision of the electric car began its demise. However, throughout the late 20th century and certainly in the 21st, we have seen advances in the electric vehicle, leading to greater horsepower, the ability to drive longer distances, and lower costs allowing more access to the market.
The growing interest in these vehicles should not come as a surprise if you’ve driven on the roads in Colorado. In September of 2017, the Denver Post reported that there were more than 10,000 EVs on Colorado roads compared to less than 100 in 2011. Colorado boasts the sixth highest EV market share in the nation and the fourth-fastest growing EV market, according to the report.
Colorado passed legislation in 2013 regarding community associations and electric vehicle charging stations, declaring that the “widespread use of plug-in electric vehicles can dramatically improve energy efficiency and air quality for all Coloradans, and should be encouraged wherever possible.”
So, why are we talking about this in 2018? While Colorado was one of the early adopters of legislation promoting the use of electric vehicles, associations should not consider it “old hat.” It’s certainly a trend affecting condos and HOAs across the nation in 2018. We are in a time where more and more individuals own or are looking to purchase electric vehicles. Because of this, associations, which may not have had to deal with this issue regularly since 2013, may have to entertain more requests for accommodation for owners’ electric vehicles. So, what exactly is the law in Colorado and how can you make sure that your association is compliant?
In Colorado, community associations are required to permit owners to install Level 1 and Level 2 electric vehicle charging stations on their lots and on limited common elements designated for an individual owner’s use.
Level 1 Charging:
The law does not require that associations incur expenses related to the installation or use of the stations. Because of the growing number of consumers purchasing electric vehicles (in large part to state and federal tax credits), community associations should consider adopting a policy regarding electric vehicle charging stations. Provisions which can be included in the policy are:
The bill also created the electric vehicle grant fund, which is used to provide grants to install recharging stations. Therefore, communities that want to participate in the progressiveness of today’s electric vehicle are encouraged to apply for grants to assist with funding electric vehicle charging stations on common elements as an added amenity for owners.
The primary purpose of the law in Colorado was to “ensure that common interest communities provide their residents with at least a meaningful opportunity to take advantage of the availability of plug-in electric vehicles rather than create artificial restrictions on the adoption of this promising technology.” And that is also certainly one of CAI’s initiatives. According to CAI,
by 2040, community associations will represent over 50% of the housing stock in the United States. By the same year, it is anticipated that electric vehicles will represent 35% of new car sales. To help promote these principles in your community or for questions about the potential impact of electric vehicles in your association or for your members, contact your legal counsel.
Ashley Nichols is the principal and founder of Cornerstone Law Firm, P.C. She has been in the community association industry for ten years, providing associations with debt recovery solutions for their communities. Cornerstone Law Firm represents Colorado communities in all areas of common interest community law. You may find out more at www.yourcornerstoneteam.com.
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