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  • 02/01/2019 7:05 AM | CAI Rocky Mountain Chapter (Administrator)

    By Ashley Nichols, Cornerstone Law Firm, P.C.

    According to the Federal Aviation Administration (FAA), in 2018, there were over one million registered consumer drones in the United States.  If you are like me, you may not have known that if you have an unmanned aircraft system (UAS or drone), you are now required to register your drone with the FAA.  The FAA estimates that the actual number of drones in the United States is closer to 1.5 million.  Additionally, at the industry’s current pace for hobbyist drones, those numbers are expected to triple to over 3.5 million by 2021. Given those numbers, odds are good that you, or someone you know, owns and operates a drone.  

    The legal framework surrounding the drone industry is still developing.  Many of the concerns are over privacy issues (flying over someone else’s property, catching a neighbor sunbathing in the buff, peeping in windows, etc.).  Associations are starting to question how to address drone operations in their communities.  One question is who owns the air where the drone is being flown?  On paper, the concept of land is relatively simple – you pay money, and in return, you’re given unfettered access to a predetermined amount of land (but HA! Unfettered and HOA, as we know, don’t go hand in hand).  But do you own the sky above?  There is a Latin phrase that translated says, “whoever owns the soil, holds title all the way up to the heavens and down to the depths of hell.”  However, today, you only really have the right to enough airspace to reasonably enjoy the land below that air.  What does that mean?  Well, that’s up for debate.  

    There is “navigable airspace” which is regulated by the FAA.  “Navigable airspace” is “airspace at and above the minimum flight altitudes …, including airspace needed for safe takeoff and landing.”  The minimum flight altitude while flying over congested areas is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet; and in uncongested or sparsely populated areas, it is 500 feet above the surface.

    As for regulation by the FAA, in addition to being registered, hobby drones are required to (a) fly below 400 feet and remain clear of surrounding obstacles; (b) remain well clear of and not interfere with manned aircraft operations; (c) not fly within 5 miles of an airport without the airport’s prior approval; (d) not fly near stadiums or people; (e) not operate drones weighing more than 55 pounds; and (f) always keep the drone in a line of sight.  Drone operators who violate these regulations could be fined for endangering other people or aircrafts.

    So, is it trespassing if you fly over your neighbor’s land?  Unfortunately, as of now, the answer is not clear.  A case that may have shed some light on the issue was dismissed by a federal judge for lack of jurisdiction.  The following is some background:  Boggs, the drone pilot, was flying his drone over property owned by Meridith.  Meridith, alleging trespass and invasion of privacy, shot down the drone (he later began calling himself the “Drone Slayer”).  Meridith was charged criminally, and those charges were dismissed by a Kentucky state court judge.  The drone pilot, Boggs, later sued Meridith in federal court asking the court to make a legal determination as to whether his flight constituted trespassing. The suit was brought in federal court because Boggs’ lawyers argued that the drone was flying in airspace which was regulated by the FAA, and as such, the incident was subject to federal jurisdiction.  The FAA was not a party to the suit and the judge, dismissing the case, stated that the state courts would be better suited to adjudicate the claim.  

    The best case law on the issue of whether a drone flying over private property is trespassing is an old case dating back to 1946.  That year, the Supreme Court ruled in a case known as United States v. Causby that a farmer in North Carolina could assert property rights up to 83 feet in the air.  In that case, the farmer was awarded damages for chickens that were killed when they flew into a wall due to the noise of a low flying plane (83 feet).

    State legislatures across the country are debating if and how drone technology should be regulated, taking into account the benefits of their use, privacy concerns, and their potential economic impact.  Forty-one states, including Colorado, have passed legislation addressing drones.  However, Colorado’s legislation only addresses governmental use of drones.

    What about the commercial side?  The business applications of drone use are nearly limitless – from delivery of packages to your door to conducting roof inspections.  Drones could be an excellent tool to help enforce violations within your community and provide efficiencies in doing so.  Currently, commercial use of drones requires FAA approval.  If your community is considering using drones for enforcement, make sure that your vendors are in compliance with federal laws and guidelines.  

    A March 2013 report from the Association for Unmanned Vehicle Systems International projects that by 2025 more than 100,000 jobs will be created with an economic impact of $82 billion.  This is certainly a growing industry and associations should ensure that they are proactively taking steps to address concerns over the use and operation of drones, rather than reacting.  At the same time, associations wanting to regulate drone use in their communities should do so with care.  Until a court conclusively finds that some portion of the airspace above private property is owned by the property owner, associations regulating said airspace will be subject to potential litigation.

    Remember that many times, drone use and operations really come down to neighbor to neighbor disputes.  An association’s best bet is to avoid provisions in a policy that are overly restrictive.  Make sure to contact your association’s attorney to discuss prior to implementation in your community. 

    Ashley Nichols is the principal and founder of Cornerstone Law Firm, P.C.  She has been in the community association industry for eleven 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.  

  • 02/01/2019 7:03 AM | CAI Rocky Mountain Chapter (Administrator)

    By Tim Moeller, Moeller Graf, P.C.

    One of the beautiful things about living in a community is the different perspectives, life experiences, and attitudes that the residents bring, which can contribute greatly to the quality of life for all.  However, sometimes it is these differences that tear us apart.  Within most communities, there will be one or more individuals who may not share the common goals of the community at large.  Some of these types of individuals will actively seek out confrontation and negativity.  These difficult individuals seem to thrive on pushing and invading reasonable boundaries and are typically very outspoken regarding their view of the management of the association.  While not experts in civility, these individuals are experts at criticizing and pinpointing the errors of others, especially the Board and/or the manager.  They will interrupt and make personal attacks and unfounded allegations.  


    By now, you may be picturing in your mind an individual that has checked all of the boxes of poor behavior mentioned above.  So how do we best deal with these individuals to avoid unnecessary conflict and disruption to association business?


    Here are some suggestions for dealing with the difficult homeowner:


    1. Update your policy regarding conduct of meetings.  You may announce the meeting procedures at the outset of meetings as well as by notifying members ahead of time in a newsletter or in the meeting notice for member meetings. 
    2. Enforce the conduct of meetings policy uniformly for all members, not just against the difficult individual. Let them know that their behavior will not be tolerated, but make sure that the rule deals with similar conduct in a similar manner.
    3. Host a homeowner forum at the meetings with an established and enforced time limitation for speaking on any matter. When the speaker’s time is up, don’t start screaming at them to sit down and shut up, but rather, nicely inform them that they have reached their time limit and that they need to wrap up their statement. If they continue to ignore the time limit, kindly remind them that they are taking time from other members and that you will now have to move on to other homeowners. If you don’t have to enforce a time limit because there isn’t any significant time constraint, try to allow the person reasonable latitude to speak freely and make their points.
    4. Establish control such that individuals are not allowed to interrupt board meetings by speaking out of turn and personally attacking others. 
    5. Respond in a regulated manner without yelling.  Refrain from trading insults and allegations.  Don’t carry on the battle over social media.
    6. Utilize basic parliamentary control by knowing how and when you may table a motion or refer a matter to a committee.  Also, recognize that parliamentary rules are not to be used as weapons to disrupt free debate but are to be used to provide a fair process for all attendees.


    Unfortunately, it is common for our office to be contacted about homeowners who are “harassing” one or more board members or the community manager.  In fact, this seems to be more and more commonplace.  At what point does lousy behavior rise to the level of harassment?  After all, it is not against the law to act poorly or to have bad manners.


    Colorado law defines criminal harassment in C.R.S. §18-9-111. For harassment under this statute to exist, there must be “intent to harass, annoy or alarm” another person in certain ways, including, but not limited to i) touching (striking) them; or ii) in public, directing obscene language or making obscene gestures to another person; or iii) following a person in or about a public place; or initiating communication by telephone, text, email, or other means in a manner intended to harass or threaten bodily injury or property damage, or iv) making any comment, request, suggestion, or proposal that is obscene; or v) repeatedly insulting, taunting, challenging, or making communications in offensive coarse language to another in a manner likely to provoke a violent or disorderly response.    


    Harassment as set forth above is a class 3 misdemeanor (unless the harassment pertains to race, color, religion, national origin or disability, which is a class 1 misdemeanor).  So, while the association may contact law enforcement should it deem that the behavior of the individual has risen to criminal harassment, there may also be other ways to head-off the problem using the association’s existing governing documents. 


    Most covenants contain provisions pertaining to nuisances.  While we can agree that bullies and difficult people seem to be a nuisance to all who come in contact with their abhorrent behavior, a legal nuisance is typically considered an activity which arises from unreasonable, unwarranted or unlawful use by a person of his/her own property, working obstruction or injury to the right of another such as smoke, odors, noise, or vibration.  


    Therefore, we may look to whether there exists more specific language in the covenants regarding harassing behavior.  Short of amending your covenants to contain such language, broad language often exists in the covenants pertaining to “quiet enjoyment” which has nothing to do with noise but can pertain to harassment.  Sometimes, a strong letter from the association’s attorney will be enough of a check on the bad behavior to alleviate some of the issues.  This may escalate to the levy of fines or other specific sanctions.  If this doesn’t work, the Board may discuss with its legal counsel the possibility of obtaining a civil restraining order in court or an injunction against their bad acts.  


    Ultimately, if you spend enough time as a manager or board member, you will eventually run into an individual who exhibits bad behavior.  Do all that you can to diffuse the problem, but don’t let the issue get out of your control.  Take whatever reasonable action is necessary to maintain control of the association and attempt to promote civility for the benefit of the homeowners that truly appreciate your time and effort spent on behalf of the community.  

  • 02/01/2019 7:01 AM | CAI Rocky Mountain Chapter (Administrator)

    By Aaron Goodlock, Orten Cavanagh & Holmes, LLC

    As banks, credit card companies, and financial service providers grapple with identify theft, so too must HOAs. Over the last several years, there has been a substantial increase in cyber-related crimes, resulting in increased identity theft and financial fraud. As a result, federal and state governments have been working to enact laws to reduce crime and protect constituents, primarily via statutes addressing consumer protection, data and cybersecurity requirements, and criminal sanctions. 


    In 2018, the Colorado legislature approved House Bill 18-1128, which was enacted and became effective September 1, 2018 to address privacy and cybersecurity protections. The new law applies to many entities in Colorado, including most HOAs and community association management companies.


    HB 18-1128 has two primary components, including: (1) requirements for storing and protecting “personal identifying information” (as defined in the statute) and (2) changes to the Colorado’s breach notification laws. 


    Managing and Protecting “Personal Identifying Information”


    HB 18-1128 applies to all “Covered Entities.” Covered entities include any individual or entity that maintains, owns, or licenses “personal identifying information” (PII). The statute defines PII to include social security numbers; personal identification numbers; passwords; passcodes; official state or government-issued driver’s licenses or identification card numbers; passport numbers; biometric data (such as fingerprints); employer, student, or military identification numbers; or financial transaction devices (such as credit or debit card numbers or bank account information). 


    Under the newly enacted laws, HOAs and management companies that store or maintain PII are required to implement and maintain reasonable security procedures and practices that are “appropriate to the nature of the personal identifying information and the nature and size of the business and its operations.” The statute also requires HOAs and management companies with access to PII to adopt written policies addressing the destruction of records containing PII when they are no longer needed.


    A third requirement under the new statute is that HOAs that maintain PII must take measures to preserve the confidentiality of PII when transferring such data to third parties (such as the association’s manager or management company or another service provider). The statute provides that covered entities “shall require” third party service providers to implement and maintain reasonable security procedures and practices which are reasonably designed and tailored to protect against unauthorized access, use, modification, disclosure, or destruction of PII. One method to address this requirement is for associations to carefully review their management agreements and ensure that adequate protections are in place, including appropriate indemnification provisions. Associations are also encouraged to consult their attorneys when reviewing association contracts whenever the disclosure or transfer of PII is involved.


    Compliance with Colorado’s Breach Notification Statute


    The second primary component of HB 18-1128 deals with notification requirements in the event of a data or security breach that results in, or is likely to result in, the misuse of “personal information.”


    For purposes of Colorado’s breach notification statute, “personal information” includes a Colorado resident’s first name or first initial and last name in combination with any of the following data: driver’s license number or identification card number; student, military or passport identification number; medical information; health insurance identification number; or biometric data. “Personal information” also includes a Colorado resident’s username or email address in combination with a password or security questions and answers that would permit access to an online account or a Colorado resident’s account number or credit or debit card number in combination with any required security code, access code, or password that would permit access to that account.


    The statute requires that if a breach occurs, the covered entity (e.g., the association or the management company) is required to notify the affected individuals within 30 days. The statute also specifies certain information that must be included in the notice and disclosed to the affected individuals. 


    If a breach involves a compromise of personal information affecting 500 or more individuals, the association or management company is required to notify the Colorado Attorney General’s office. If the breach involves more than 1,000 individuals, notice is also required to be provided to the credit reporting agencies. Accordingly, large communities that include 500 or 1,000 homes or more, including the association’s board of directors and management, should be cognizant of their duties and responsibilities in the event of a breach and would be wise to address such requirements in the association’s written policies.


    Conclusion


    Good risk management practices for associations and management companies includes adopting and implementing appropriate written policies (pursuant to the statute), including policies for maintaining PII and other personal information and developing incident response plans in the event of a breach. By doing so, boards of directors and management companies can limit their risk of liability if and when a breach occurs. 


    Another method to limit risks involving data and security breaches is through obtaining and maintaining appropriate insurance including, without limitation, cyber liability insurance (cyber risk insurance), computer crime insurance, D&O insurance, and fidelity insurance. Associations should consult their insurance agents and advisors to determine the appropriate coverage based on the particular community’s needs. 

  • 02/01/2019 6:58 AM | CAI Rocky Mountain Chapter (Administrator)

    By Jennifer A. Seidman, Esq., Burg Simpson Eldredge Hersh & Jardine, P.C. 

    Colorado is outpacing national trends for new apartment construction and, as the influx of new residents continues, developers continue to build.  Those familiar with the real estate market predict that rental apartments will be converted to for-sale condominiums.  Our firm’s construction defect attorneys know that complicated issues arise when construction problems are discovered in condo conversations.  Here are six things you should know about construction defects in condo conversions:

    1. It’s Still Mostly the Wild West Here.There are very few Colorado laws or court decisions that regulate condominium conversions.  As a result, the discovery of defects in a condo conversion may raise questions that do not have clear answers.
    2. Beauty May Only be Skin Deep.  The conversion process may involve renovations that increase an older apartment building’s aesthetic appeal, but the components beneath the façade may have already lost a significant part of their useful life and may contain construction defects.  If a report on the building’s condition was generated during the conversion process, as some municipalities require and many new building owners obtain, request a copy.  Consider having a professional inspect the property to identify any construction defects and useful life concerns.  Also, evaluate whether the monthly assessments are appropriate. Because high monthly assessments are unattractive, a condo converter may set assessments at an artificially low number to generate initial sales and profits.
    3. There May be Growing Pains. Sometimes, the converter will retain ownership of units to rent.  When occupants are a mix of owners and renters, and when the landlord is the converter, complications can arise.  Some of these issues can be addressed through amendments to a community’s governing documents, if the converter does not prevent such efforts.
    4. The Clock May Be Ticking Attorneys who represent builders and developers have recently suggested that an ideal time to convert an apartment building to a condominium building is eight years after the building’s substantial completion.  This is because the statute of repose, which is an eight year time limit on construction defect lawsuits, may bar some claims that an owner could have otherwise asserted against those responsible for the building’s construction.  However, when a condo conversion involves significant construction work that alters or is integrated with original work, the statute of repose probably will not provide a complete defense to an association’s or owner’s claims based on the new work.  Also, the statute of repose may not apply at all to claims against a developer, including the building’s original developer, who owned the property when the defects caused damage.
    5. Honesty is the Best Policy.While the statute of repose may bar some claims, it likely will not affect claims that declarant-appointed board members breached their fiduciary duties or that the seller misrepresented or failed to disclose important facts about the building’s or unit’s construction during the sales process, including hidden defects and concealed costs.  This is because these claims are not based directly on construction defects, but rather are based on breaches of loyalty to the homeowners’ association, misrepresentations, and other types of wrongful conduct.  
    6. What You Don’t Know Can Hurt You.  Conversions raise complicated issues relating to who is responsible for investigating an already-constructed building and who is responsible for identifying problems and repairing them or fully disclosing their existence.  An association’s or owner’s rights and remedies in these situations will ultimately depend on the extent and type of investigation and work performed as part of the conversion process, the roles and extent of knowledge of various entities involved in the conversion, when and how the defects were created and discovered, whether the existence of defects was or should have been disclosed and many other issues, including whether the converted condo is located in a municipality that regulates conversions and requires compliance with applicable building and fire codes.  

    If you would like more information about conversions or have questions about possible defects in your recently-converted condominium, call one or our attorneys at 303-792-5595 or reach out to Loura Sanchez at lsanchez@burgsimpson.com.

  • 02/01/2019 6:53 AM | CAI Rocky Mountain Chapter (Administrator)

    By Keith Hoagland, McKenzie Rhody, LLP 

    When creating a common interest community, the developer typically forms the owner’s association and controls it for a period of time through a developer-appointed board of directors. The Colorado Common Interest Ownership Act (“CCIOA”) requires that this period of control terminate after sufficient units have been sold, after sufficient time has passed since the last sale of a unit, or after sufficient time has passed since the last exercise of any right to add new units.


    However, a developer may include provisions in a community’s governing documents that allow it to continue to exert control over a community after its control of the owner’s association has terminated. For example, the declaration may contain a requirement that certain amendments to the declaration require the developer’s consent. As a result, the community may find it impossible to amend the declaration in some ways, regardless of how many unit owners approve. Such a requirement severely impairs the right of an association to self-govern and, in some circumstances, it may also limit the legal recourse it has against the developer. In fact, in Vallagio at Inverness Residential Condominium Ass’n v. Metropolitan Homes, the Colorado Supreme Court recently upheld such a requirement as valid.


    The declaration at issue in the Vallagio case required the owner’s association to arbitrate construction defect claims against the developer. Although declarations commonly contain such a requirement, this one further stated that the arbitration requirement could not be amended without the developer’s consent. The Colorado Court of Appeals has previously held that an owner’s association can remove an arbitration requirement in a declaration by amendment. However, requiring the developer’s consent to do so effectively makes the requirement permanent, controlling the manner in which the association may pursue construction defect claims long after the developer has sold the last unit and relinquished any control over the association.


    CCIOA prevails over any inconsistent provision in a community’s governing documents, and the association in Vallagio made several strong arguments as to why the consent requirement in the declaration violated CCIOA. First, as noted above, CCIOA sets strict limits on the period of time during which the developer can maintain control over an owners association, and prohibiting amendment of the declaration without the developer’s consent would amount to impermissibly exerting control over the association beyond the time limit set forth by CCIOA. However, the court of appeals found that this provision deals specifically with the developer’s right to appoint and remove members of the association’s board of directors. Since the unit owners and not the association itself make amendments to the declaration, the court reasoned that the declaration did not require the developer’s consent for any actions of the association. Curiously, the Colorado Supreme Court did not address this argument separately on appeal, and it remains unclear whether it would have adopted the rationale of the court of appeals.


    Second, outside of certain narrow exceptions, CCIOA explicitly provides that a declaration may be amended only by the affirmative vote or agreement of unit owners holding more than 50% (and up to 67%) of votes in the association. Requiring the developer’s consent to amend the declaration, especially if the developer no longer owns title to any units, would effectively call for something above the required unit owner vote. However, the court found that this provision merely prohibits requiring a percentage of unit owners larger than 67% and does not prohibit imposing additional requirements.


    Third, CCIOA prohibits a developer from evading CCIOA’s limitations or prohibitions, an example of which would be controlling the votes of unit owners. By requiring its consent to amend the declaration, regardless of the number of unit owners in favor, the developer effectively controls the votes of those unit owners. However, the court rejected this argument, finding that it did not impermissibly create class voting or run afoul of CCIOA’s policies or purposes, which endorse and encourage arbitration.


    Finally, CCIOA prohibits imposing any limitations on the power of an owner’s association to deal with the developer that are more restrictive than the limitations on the association’s power to deal with other persons. Requiring the developer’s consent to amend the declaration effectively restricts the association’s ability to deal with the developer more so than its ability to deal with other persons. This would seem especially true where the provision being amended, as in Vallagio, is one that specifically benefits and protects the developer. However, the court found that because, as noted above, it is the unit owners and not the association itself that amends the declaration, the consent requirement did nothing to restrict any power of the association.


    Significantly, the court stated in a footnote that its holding is confined to “a narrowly drafted consent-to-amend provision that pertains solely to the resolution of construction defect disputes,” and that it “express[es] no opinion as to the propriety of any other consent-to-amend provisions.” However, as noted by two dissenting justices, the rationale for the opinion was not limited in this way. Consequently, the dissent fears that it will allow developers to control the affairs of owner’s associations “into perpetuity” simply by requiring its consent to amend any provision in a declaration. The fallout from this decision is likely to spawn future litigation testing the boundaries of consent-to-amend as a control mechanism that extends well beyond arbitration requirements in construction defect disputes.


    Keith Hoagland is an attorney with McKenzie Rhody, LLP. McKenzie Rhody specializes in representing homeowners and homeowner associations in construction defect matters in Colorado, Texas, and California. www.mrcdlaw.com

  • 02/01/2019 6:49 AM | CAI Rocky Mountain Chapter (Administrator)

    By Amanda K. Ashley, Altitude Community Law, P.C.

    Bankruptcy is one of those mystical creatures that we’ve all heard of but hope we don’t run across. If your association hasn’t yet dealt with an owner who filed or is in an active bankruptcy, don’t worry – you will! In fact, bankruptcy is frequently used by owners to prevent further collection action, stop a foreclosure, or otherwise restructure or assist with ongoing financial obligations that are no longer affordable. 


    When an owner files bankruptcy, the “automatic stay” becomes effective immediately upon filing of the bankruptcy petition. (11 USC § 362).  The stay is in essence an injunction against creditors from pursuing further collection action, including foreclosure, garnishment, or eviction. The automatic stay is generally in effect throughout the course of the bankruptcy, which can be a significant length of time in a Chapter 13 bankruptcy since the Chapter 13 bankruptcy can continue for up to five years.


    Most creditors, including associations, are aware of the automatic stay provisions regarding general collection action such as filing lawsuits, attempting wage garnishments, or other legal action. But what many associations are not aware of are the other actions it takes that may violate the automatic stay provision, such as continuing to prohibit an owner from using the association’s amenities (e.g. the swimming pool) once an owner files bankruptcy. While an association can prohibit an owner from using its amenities due to the owner’s delinquent account (assuming the association is acting pursuant to its collection policy, of course), once that owner files bankruptcy, the association must cease all collection action. In other words, if the association does not unlock the amenities for that owner, the owner will likely have a strong case that the association has violated the automatic stay provision since the lockout is likely a type of collection action utilized by an association to prompt an owner to become current on an account. 


    An association’s recourse then, in light of a bankruptcy filing, is to file a motion for relief from the automatic stay since the association is a secured creditor and can petition the court for relief from the stay for cause under § 362. 


    Failure to obtain relief from the stay or failure to cease all collection action can result in significant penalties for violating the stay, so tread carefully, associations! If a creditor is found to have violated the automatic stay, penalties including sanctions as well as punitive damages can be assessed. Additionally, damages may also be awarded for emotional distress. Keep in mind that whether a creditor intended to violate the stay order is not a consideration in determining whether there was a violation of the automatic stay; rather, the issue generally becomes whether the creditor intended to collect or continue collection in violation of the stay order.


    Of course, every situation is different. There are exceptions to the application of the automatic stay which is why each bankruptcy filing should be reviewed individually. This article is purely meant as a starting point and should not be construed as legal advice. 


    Amanda K. Ashley is an attorney at Altitude Community Law, a law firm specializing in community association law. She works primarily in the Debt Recovery department.

  • 12/01/2018 4:16 PM | CAI Rocky Mountain Chapter (Administrator)

    By John Ganoe, CAECAMICB


    Even for those deeply entrenched in the credentialing world, there's a certain degree of confusion around some of the terminology used to describe specific paths professionals take to further their careers and skill sets. The field of community association management is no different so it's important to educate managers, homeowners, and other community association professionals about the different options the profession has to offer and the value they hold.

    According to the Institute for Credentialing Excellence (ICE), “credentialing" is an umbrella term used to refer to concepts such as professional certification, certificate programs, accreditation, licensure, and regulation. 


    ICE defines certification, licensure, assessment-based certificate, and accreditation in the following ways:

    A certification program is designed to test the knowledge, skills, and abilities required to perform a particular job, and, upon successfully passing a certification exam, to represent a declaration of a particular individual's professional competence, such as a community manager who has achieved the Certified Manager of Community Associations (CMCA®).  In some professions, certification is a requirement for employment or practice. 

    • Similarly, licensure tests an individual's competence but is a mandatory process by which the government grants time-limited permission for that licensed individual to practice his or her profession, such as a real estate salesperson or real estate broker.

    • In contrast to certification and licensure, an assessment-based certificate program is an educational or training program that is used to teach learning objectives and assess whether those objectives were achieved by the student.

    • Accreditation is the process by which a credentialing or educational program is evaluated against defined standards and is awarded recognition if it is in compliance with those standards. The Certified Manager of Community Associations (CMCA®) is such a program. ICE currently offers accreditation to professional certification programs through the National Commission for Certifying Agencies (NCCA). 



    Specialty Designations

    Community association professionals may also choose to bolster their careers and expand their level of expertise in certain areas. This is where specialty designations come into play. A “designation" is recognition of professional knowledge and expertise in a given subject matter or job skill.  To earn designations, membership is required in a professional organization and usually requires work experience.  Certain specialty designations are offered through the Community Associations Institute (CAI) including, the Association Management Specialist (AMS), Large Scale Manager (LSM), Professional Community Association Manager (PCAM), Community Insurance and Risk Management Specialist (CIRMS) and Reserve Specialist (RS). This allows a community association professional to drill down into a specialized aspect of the business.  In some cases, for example the PCAM and AMS designations, passing the CMCA examination is a prerequisite to applying for these designations.

    I've experienced a wide disparity in the background and quality of the managers with whom I've worked," said Ron Perl, Esq., a Partner at Hill Wallack LLP, who leads the firm's community association practice group.  “A manager who holds the CMCA assures me they have an important foundation in place – the ongoing education and knowledge necessary to successfully manage millions of dollars worth of other people's property and a serious commitment to high ethical standards."

    Stephen Castle, CMCA, AMS, PCAM agrees all committed community association managers should hold the CMCA certification. “The CMCA certification demonstrates to employees and new managers a commitment to professionalism," said Castle. “Further, CMCAs show their support for established national and international standards of knowledge and professional conduct for community association managers.”


    The CMCA Goes Global

    As CAMICB grew to be the premiere certification body in the United States for community association managers, it also gained international recognition for its established body of knowledge and strict ethical standards. Over the past two decades, the CMCA certification program crossed borders and oceans in Australia, Bermuda, Canada, Mexico South Africa, and the United Arab Emirates. This global expansion secured a high level of professionalism for association management and common interest communities worldwide. In 2017, CAMICB launched the international CMCA examination.


    About ICE

    The Institute for Credentialing Excellence, or ICE, is a professional membership association that provides education, networking, and other resources for organizations and individuals who work in and serve the credentialing industry.  ICE is a leading developer of standards for both certification and certificate programs and it is both a provider of and a clearing house for information on trends in certification, test development and delivery, assessment-based certificate programs, and other information relevant to the credentialing community.

  • 12/01/2018 4:15 PM | CAI Rocky Mountain Chapter (Administrator)

    By Emily Walsh, SOLitude Lake Management 

    Community lakes and stormwater ponds can be used to attract native wildlife, facilitate recreation and enhance the beauty of a HOA property, but, over the course of many years, these aquatic resources may experience sedimentation, nutrient loading and other water quality problems. If a waterbody is not properly managed, it will eventually fill in with muck and other organic materials until depths are significantly reduced. To help restore volume, reduce the possibility of flooding during rainstorms, and improve overall water quality, it’s important to consider hydro-raking as a proactive management tool. 

    If you own or manage an association with lakes and ponds, you’ve likely heard of hydro-raking as a unique strategy utilized by aquatic professionals to remove aquatic vegetation and “bottom sludge.” A hydro-rake is essentially a floating barge supporting a mounted backhoe and rake attachment that can remove up to 500 pounds of lake and pond muck, plant material and organic debris in a single scoop.

    The hydro-rake has the ability to target certain areas of nuisance and/or invasive aquatic vegetation, while conserving other areas in their natural state. This is crucial in the eyes of aquatic management, which is geared towards retaining and restoring balance within the waterbody’s ecosystem. Maintaining an equilibrium of native vegetation enhances the potential for increased species richness and ecosystem resilience – the ability to maintain balance despite challenges posed by nutrient loading, water stratification and other factors that can affect water quality. In addition to proactively managing vegetation, hydro-raking can help reduce or prolong the need for dredging, which is often the costliest project a homeowners association will ever face.

    While the hydro-rake is not a suitable management strategy in every situation, it can be extremely effective when used to control several types of vegetation often found in waterbodies used for recreation, community fishing, the collection of stormwater runoff, or simply the enjoyment of their aesthetic beauty: 

    EMERGENT SPECIES

    Emergent vegetation such as cattails, common reedand maidencane are common plants that can plague waterbodies; however, removal can be achieved by utilizing the hydro-rake as a stand-alone management option or as a complement to other management approaches. Emergent plants are fantastic candidates for the hydro-rake because they are usually found along the edge of the waterbody, where they can be easily accessed by the rake attachment. During the removal process, the hydro-rake will extract the plant in its entirety, as well as its attached rhizome (root) structure lain beneath the water’s surface. Because the hydro-rake works from the water rather than land, desirable ornamental and buffer plant species along the shoreline are not impacted. 

    FLOATING LEAF SPECIES

    The hydro-rake is effective when removing common floating leaf vegetation such as water lily and watershield. These plant species are ideal for hydro-rake management, due to their leaf structure and attached root systems underneath. As with common reed and cattail removal, the hydro-rake can remove the plants, as well as the root structures. Open water is then restored, thus enhancing the ability of native aquatic flora and fauna to repopulate the area. Other common floating-leaf species, such as water hyacinth, water chestnut, and water lotus are additional candidates for hydro-raking service

    SUBMERSED SPECIES

    Submersed species such as curly-leaf pondweed, big leaf pondweed and tape grass can be effectively managed through hydro-raking. These prescribed programs can provide sufficient plant reduction, especially when combined with herbicide management options. As with any management strategy, it’s important to always consider the biology of the targeted plant before beginning a hydro-raking project. Some submersed plants, such as such as milfoil and fanwort spread heavily through fragmentation and may require alternate management strategies to ensure fragmentation and repopulation do not occur. 

    Hydro-raking is a management tool used in a wide array of aquatic restoration projects ranging from inlets, outlets, littoral zones, coves, private shorelines, and more. Aquatic vegetation removal projects can be performed any time of year, but the best time is when the nutrients are in the vegetative structure; this is relative to the associated region, weather conditions, and plant biology. When considering this service, the first step is to contact your local lake and pond management professional to conduct a site visit. During this time, they will identify nuisance plant species and management areas, and consider a strategy that aligns with your association’s long-term waterbody goals. 

    As with any form of proactive management, hydro-raking can help improve the health, longevity and beauty of your community’s lake or stormwater pond for years to come, but is most effective when used in conjunction with other preventative management methods, including aeration, buffer management, nutrient remediation and other strategies that prevent the premature aging, or filling in with sediment, of the waterbody. 

    Emily Walsh is an experienced Environmental Scientist with SOLitude Lake Management, an environmental firm providing sustainable lake, pond, wetland and fisheries management solutions. Learn more about this topic at www.solitudelakemanagement.com/knowledge

  • 12/01/2018 4:13 PM | CAI Rocky Mountain Chapter (Administrator)

    By Nate LePage, Asphalt Coatings

    This year was marked by two regulations that made most of us tied to property management a bit more anxious: ADA Compliance and Trip Hazards.  Sometimes, these two may even have occurred together as a raised or separated curb tied to an ADA parking stall created a nightmare scenario for a property manager.  To make matters worse, repairing these troubled locations was often mandated from the lender who wanted them fixed ASAP.

    And, by ASAP, they meant yesterday!

    By shedding light on the process to identify whether these repairs are necessary, we can then look at a few tips on how to move forward and get problem areas up to code as quickly as possible.

    But, before we dive in to that….let’s look at a bit of history which will also provide us with some helpful information as we move forward.  Don’t worry, we will skip all the boring parts!

    The Americans with Disabilities Act – or ADA, for short – was signed in to law in 1990.  Designed to level the playing field, its goal was to provide those with disabilities equal access to all of life’s daily activities (work, play, shopping, etc.).  This piece of legislation established the parameters we adhere to today.  For example, the 2% grade limit on an ADA parking stall, the 8% slope on a ramp, and the ¼” trip hazard benchmark all came from this law.  In keeping up with the times, their website – www.ada.gov – includes tons of information on the regulations and guidelines.  A quick word of caution: the website also allows complaints to be filed online fairly easily.  Yikes!

    Speaking of complaints, let’s move on to the process of identifying potential areas that need to be repaired.  If we are vigilant and stay on top of these, they can be addressed before they become a “911” issue.

    The most common areas of concern are sidewalks, ADA ramps, and the cracks between the curb & gutter/sidewalks.  With the crazy freeze-thaw weather we get here in Colorado, it’s very easy for water to get in, freeze and expand, and press things out of alignment.  The result is one sidewalk stone or panel will be higher than the one next to it.  As we learned from the ADA, any raised surface greater than ¼” qualifies as a trip hazard.  Similarly, a very, very hot day in August can cause sidewalks to ‘heave’ and can result in the same dangerous trip hazard.

    So, what’s the magic formula for keeping ADA compliance and trip hazards at bay?

    Walking the property on a weekly basis and utilizing on-site facilities maintenance personnel are great ways to be proactive and identify areas for repair.  Getting familiar with your property will help you recognize when an area has changed; plus, it’s a great chance to get a break from being in the office and catch some fresh air.  Installing handrails on any access ramps within the property can also minimize accidents.  Handrails prevent wheelchairs from straying off a ramp and provide a way for someone to break a fall should they slip or trip.  Additionally, pavement markings help those with disabilities identify spaces reserved for them and can keep them from areas that may prove more difficult.  Utilizing truncated domes at crosswalks are also very helpful (and often mandated by municipalities).  

    Once a damaged area has been recognized for repair, there are a few options to get the location back up to code.  If available, consulting with the onsite maintenance team’s capabilities can save some budget money by keeping the repair in-house.  If outside service is needed, starting with previous contractors or the ‘preferred vendor list’ at your company can save time locating a reputable contractor.  When reaching out for the first time, many property managers will seek to receive at least 3 quotes or proposals before making a decision.  A word of caution: Don’t always choose the lowest bid!  When it comes to code compliance, choose wisely and make sure you select a contractor with a proven track record.

    In summary, the best way to keep peace of mind regarding ADA compliance and trip hazards is through routine maintenance.  If you have any questions or just need some help in general, it’s advised to reach out to a reputable, local, and honest contractor for help.  Their expertise can ease anxieties and provide guidance on how to move forward.

    Asphalt Coatings has helped property managers with their parking lots for over 30 years.  When not helping customers with their parking lots, you’ll find Nate out enjoying the Colorado mountain country.  If you have any questions regarding parking maintenance, you can email Nate at nlepage@asphaltcoatings.net  

  • 12/01/2018 4:11 PM | CAI Rocky Mountain Chapter (Administrator)

    By Nicole Stone, LMI Landscapes Inc.

    We drive in and out of our communities several times a day, oftentimes not even noticing our surroundings. However, have you driven by and noticed that some communities have beautiful flowers, wonderful blooming shrubs, gorgeous trees, and a crisp, enchanting curb appeal?  Those communities are the ones that draw and encourage new buyers to move into the community. Landscaping simply adds to an inviting backdrop by having a pleasing, attractive, and creative scene which encourages new buyers, along with increasing property values in your community.  Therefore, it’s not a bad idea to encourage your neighbors to spruce up their landscaping as well! 

    Speaking of curb appeal, landscaping can add a powerful kick-start to your neighborhood. Many communities have started focusing on improvements toward the exterior, with the understanding of just how important that “first impression landscape” is to prospective buyers.  Keeping up with the exterior aesthetics, like landscape, can have a serious financial impact; According to the National Association of Realtors, exterior landscaping can add an estimated 7–15% value to the property by simply maintaining the existing turf, plant material, and trees. 

    The Florida Nursery Growers and Landscape Association did research and compiled the following statistics:

    • Landscaping can increase the resale value of a property by as much as 14%
    • The sale cycle of a property can speed up by as much as six weeks with proper landscape
    • A landscaped curb can increase property value by 4.4% and hedges can add 3.6%

    A third professional entity have also conducted studies, as The Natural Resources Defense Council researchers have found that landscaping can add an estimated 7% percent to an average purchase. This also helps increase selling opportunities. Landscape in today’s environment has become more vibrant, with increases in colorful, accenting plantings throughout the front entrances of communities. 

    Taking a gander throughout the Front Range will inevitably show that there are several new communities being developed, and this is unlikely to slow down soon. These new developments are implementing unique landscape and decor in a variety of ways including the repositioning of existing structures, the creation of walking paths, seating areas, as well as plenty of parks and open spaces. This plethora of redevelopment is a perfect opportunity for older communities to renovate their existing landscape as well, by creating a fresh new look that will tie into the incoming communities and vibrant landscapes.

    This is an exciting time because your community has many options regarding freshening up the community with options that have not been available before. From hiring a professional firm to create a completely different look, to refreshing the existing landscape, your community will need to decide which direction is best suited for your needs. It is easy to see when you drive around and take notice of all the upgrades taking place in older communities, from the exterior to the landscaping. These properties are well on their way to creating a new fresh look by reconfiguring the existing structure and reworking the existing landscape back drops to better suit the future and move away from the past.

    LMI Landscapes Inc. has been successfully servicing the green industry in Dallas, Austin, and Denver since 1987. We are comprised of three divisions; Construction and Irrigation Installation, Maintenance, Enhancements, and Irrigation, and Snow Removal Services. 

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