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  • 04/01/2019 9:11 AM | CAI Rocky Mountain Chapter (Administrator)

    By Brian Cadwallader, The Pool Connection Inc.

    Like many investments, your swimming pool is one that requires regular maintenance.  All too often, details that may seem small to the untrained eye can have serious consequences if left unaddressed.  Regular maintenance of pool and equipment, along with properly balanced water chemistry, can go long way to keep your pool looking beautiful and operating smoothly. 

    Structural Maintenance

    We often see items that are neglected on pools, such as a properly maintained caulking joint between the coping and deck.  This sealant has a very important job in protecting the structural integrity of the pool shell and corresponding components.  Water penetration into this joint saturates the soils around the shell and can cause heaving of the pool, as well as the neighboring deck slabs.

    The water that enters the caulking joint can also damage the components of the pool itself.  As moisture makes its way under the coping and behind the tile line, it quickly begins to undermine the adhesion and stability of the materials. This leads to tiles falling off, leaving your pool looking unsightly.  In addition, loosening coping stones can be a hazard and major liability!  If left unaddressed for a significant period, the bond beam, or top of the pool wall, will begin to deteriorate, leading to structural cracking in the shell itself.  The concerns of water penetration to a pool shell are compounded in freeze/thaw climates.  As water freezes, it expands greatly, which can cause severe damage over the winter months. 

    Even if the caulking is very well maintained, it is still important to conduct regular inspections of the rest of the pool shell to look for any signs of deterioration.  Remember, your pool is meant to be a water tight vessel.  Cracks lead to water penetration, which leads to the undermining of your pool structure as a whole.  Keep your pool sealed so you can keep swimming!

    Maintaining Water Chemistry

    The manner in which a pool is maintained is a major determining factor on how much potential cost will be incurred to keep the amenity operational.  A facility with consistently balanced water chemistry and properly maintained equipment will save significant annual costs by not needing to replace or repair items prematurely.  On the other hand, pools with erratic water chemistry issues and neglected equipment will incur substantial costs and find themselves constantly chasing one repair after another!

    A crystal-clear pool on a hot sunny day sure can be inviting!  However, sometimes this comes at a price.  With the sincere intention of keeping a pool looking good, pools are very commonly over chlorinated.  This can start a chain reaction that can cause damage to every component of your pool!  

    High chlorine levels will drive PH and alkalinity levels down.  What does this mean for you?  It means aggressive water that will wreak havoc on your pool and equipment.  Water in this aggressive state will attack anything made of metal.  This includes parts in your pumps and heaters among other things.  The heat exchanger, a very expensive heater part, is particularly sensitive to this corrosive water and in severe cases, can be ruined in a matter of weeks.

    When corrosive water breaks down metal components in the system, the dissolved particulates permeate the water and stain the pool surfaces making for an unappealing look.  Metal components are not the only material to take a toll from unbalanced water.  Cementous materials, vinyl liners, and fiberglass finishes are all affected by aggressive water.  Cement breaks down and dissolves, vinyl liners wrinkle and fade, and epoxy paints applied to fiberglass wear away.

    Pools are a big investment, but with diligent care you can protect your investment and keep more of your dollars in your pocket!  The hard work that it takes to have a well-maintained pool will pay off, ultimately saving money in the long run.  The same cannot be said for the pool that did not receive the same diligent care.  As with most things in life, you get back what you put in!

    Brian Cadwallader, President of The Pool Connection Inc., has been proudly serving the Denver Metro area for over 28 years!  From minor repairs to new construction, and everything in between, we have all the tools to get the job done!  Don’t let your investment go by the wayside!  

  • 04/01/2019 9:09 AM | CAI Rocky Mountain Chapter (Administrator)

    By Shad Parrish, BrightView Landscape Services

    A beautiful landscape has many physical, social, and financial benefits.  Greater health and enhanced moods result from a landscape that invites you outside to exercise with your family, or to entertain guests.  A well maintained landscape also helps the environment.  In addition to converting carbon dioxide to oxygen, a well established landscape helps control erosion and flooding, and combats climate change.  And with a significant initial investment that many homeowners associations have put into their communities, proper maintenance is the means of protecting and “growing” that investment.

    Unfortunately, many older landscapes suffer from deferred maintenance; the lack of appropriate services to adequately care for the various features that make up one’s landscape, either due to cost savings / budget goals, or from placing priority on other items.  Studies have shown that for every $1 in deferred maintenance activities, it costs $4 in capital spending to offset the effects of the deferred maintenance.

    When securing a more complete landscape contractor, you will likely find that a truly competent provider’s contract price is generally higher than their competitors because they will be able to keep the ancillary costs (water usage, plant / tree replacement) lower.  By taking a “big-picture” view of your landscape costs, and looking beyond only the contract price, you can save significantly on future expenses.  

    Just as there are various components of your landscape, there are various activities involved with proper landscape maintenance.  The most visible and often most thought about is the maintenance of the bluegrass turf throughout your community.  Healthy, manicured turf is a function of proper watering, fertilizing, aerating, mowing, and weed control.  While many people think of golf courses as the model of beautiful grass, maintaining bluegrass requires many of the opposite methods.  Mowing at taller heights (generally in the neighborhood of 3” +/-) vs. mowing it “putting-green short” promotes healthier bluegrass turf.  Fertilizing using a quality product that matches well with the needs of the soil (which can be determined through a soil test) helps the turf by supplying nutrients that are otherwise lacking in the soil.  While not a full replacement for fertilizers, adding organic matter into the soil is also a significant means of promoting turf health.  

    In regard to weed control, the best answer is not to simply spray an overabundance of chemicals on the grass.  Healthy grass is the best way to curtail weeds, meaning ensuring other aspects of turf maintenance are being done properly.  Targeted applications of pre-emergent (based on conducive weather conditions in the spring) and post-emergents, while beneficial, are meant to help control weeds, not serve as your only defense. 

    And of course, proper irrigation will help your turf and the rest of your landscape thrive.

    Many homeowners (and unfortunately some contractors) think dumping more water on the landscape will make it healthy.  Overwatering essentially drowns the turf, as the spaces that otherwise would hold oxygen are filled with water.  The result is shallow root systems for the turf, which often begin with overwatering in the spring.  Shallow roots lead to stressed turf.  The results are: greater susceptibility to insect and disease, greater weed growth (which needs more financially and environmentally costly chemical applications), and the need for more fertilizer than is otherwise adequate (since the fertilizer is essentially being washed out) to keep the grass green.  

    A better approach would be to educate homeowners and wait until later into the spring to regularly water the turf.  Setting programs for short durations, often only for a day or 2 per week, forces the turf to develop deeper root systems, thus strengthening the turf, protecting it from insects and disease, allowing the turf to fill in more and choke out weeds, and require less drastic increases as the season progresses.  Additionally, there are countless new technologies that make watering more efficient, alert you when problems occur, and allow you to better budget for, monitor, and adhere to various water allowances. 

    An attractive landscape also means keeping weeds in bed areas under control (and out of sight, out of mind).  A coordinated program of pre-emergent (which prevent weed seeds from germinating and spreading) applied in the spring along with hand pulling and post-emergent (eradicate existing weeds) throughout the year will ensure your shrub and perennial plantings are the focal points, not the weeds.  The mulch (especially wood mulch) in these beds should also be regularly supplemented to promote appearance as well as to help promote healthier plants by assisting in moisture retention.

    Agronomically correct trimming / pruning of shrubs (in a manner most healthy to the plant) is among the most important aspects of caring for these landscape assets.  The more is less approach is typically the rule here.  Unfortunately, many think that shrubs should continually be trimmed, which actually has a detrimental effect on many plants.  Certain plants are conducive to continual pruning, but most of the plant material here in Colorado should not be touched more than twice per year (some only once), with the time of year and weather factors being very important.

    Trees represent the single most expensive landscape asset in many mature landscapes, and therefore should be maintained accordingly.  Proper fertilizing (typically deep root), watering, and targeted insect control are the primary components of proper tree care, and having a qualified landscape professional with the ability and expertise to care for your trees properly is of paramount importance.

    As with any living thing, your landscape needs continual care and attention.  You may take vitamins, or others may need surgery to help them, and similarly, your landscape can’t be expected to thrive on its own, especially as our natural environment changes.  Enhancements need to be made in order to attain the benefits presented at the beginning of this article.  Such improvements may include replacing dead / dying plants, converting high water use turf areas to more sustainable alternatives, installing more colorful plants and flowers to improve an area’s appearance, or taking advantage of new irrigation technologies to maximize watering efficiency.  Doing nothing results in the poor health and appearance of your landscape, and soon those benefits diminish, and landscape assets devalue.  And while all of these things come at additional costs, those costs represent the investments needed to protect your assets, as well as your physical, mental, and emotional health. 

    As a Business Developer for BrightView Landscape Services for over 10 years, Shad truly aims to position himself as a resource for Association and Property Managers across multiple industries, offering education and perspective on all things pertaining to landscape maintenance and snow removal. 

  • 04/01/2019 9:07 AM | CAI Rocky Mountain Chapter (Administrator)

    By Quality First Plumbing & Heating

    TIP #1

    You can do a few things to avoid a mess this spring. If you live in a home built in the 70’s or earlier, you may want to consider having the main sewer line for your home cleaned. These homes tend to have metallic or clay sewer pipes which allow tree roots to grow inside them. These roots don’t necessarily mean the pipe is broken, although they find their way through the joints in the pipe and catch things, potentially causing a back up. Avoid the mess and the possible damage by having the line cleaned when it is convenient for you, instead dealing with a surprise back-up at the worst time.

    TIP #2

    Things to remember for spring to have a “happy” plumbing system: Did you forget to remove your garden hose before the cold set in? Even “frost free” hoses can freeze if a hose is attached during freezing temperatures. Leaving the hose on the faucet keeps the faucet from draining. The remaining water will freeze and could damage the faucet. Before running water to wash your car or do some spring cleaning, locate the area in your home where the hose connection leaves the building. Connect the hose and turn the water on slowly. Check the area where the hose leaves the home and make sure you don’t see water coming in. If the hose faucet did break and you see water, turn off the hose immediately and call your plumber. Clean up any water that may have entered as soon as possible!

    TIP #3

    Change your furnace filter! Start up your air conditioner on the first day the temperature reaches 70 degrees. A digital thermometer at one of the vents should reach the low 60’s. Having your system inspected and serviced is a great idea to ensure your system is operating efficiently and safely! This is also a great time to change the batteries in your smoke detectors and carbon monoxide detectors! 

  • 04/01/2019 9:05 AM | CAI Rocky Mountain Chapter (Administrator)

    By Justin Bayer, Caretaker Landscape and Tree Management

    • When to start up your irrigation system is often a point of contention between landscape contractors, community managers, and HOA boards.  The temperamental weather in Colorado can make knowing when to fire up the system a bit confusing; March can be dry for weeks, leading residents to want to get the system up and watering, when out of nowhere a large storm can come through and freeze all of the lines, potentially causing damage to the system.  
    • In order to avoid wasting water and money, we suggest aiming to turn on your irrigation system between April 15th and May 1st.  The weather has been colder and wetter this year, especially when compared to the last few years, and March and April have the tendency to be wetter months.  This means you can save on your water bill by holding out for a bit longer before starting up your system.  
    • As you gear up your irrigation system and start to fine tune it for spring and summer, make sure to inspect your system thoroughly.  You will want to make sure all of your pop-up spray heads and rotors are working optimally (covering the right area and not clogged) and that your drip emitters are working properly on your trees and shrubs.  Emitters and spray heads have a tendency to get clogged up during the winter, and if left unresolved, can lead to major problems down the road.  Along with doing a thorough check during the start-up process, your landscape contractor should be checking your irrigation system on a consistent basis during the course of the season to catch any potential problems early.  The sooner you notice an irregularity, the quicker you can get it resolved through your landscape maintenance team.
    • April is the perfect time to get your irrigation needs addressed, and backflows are the heart that drives the system and keeps it up and running.  Unfortunately, backflows are a common target for thieves, and many communities find out when their contractors are ready to fire up the irrigation system that their backflow has gone missing.  Placing your backflow on a concrete slab with a locked cage is the best way to deter thieves from stealing these integral pieces.  If your backflows are currently not locked in a cage, consider getting a bid from your landscape contractor to address this.  It’s a one-time charge that can help save you the money of replacing your backflows year after year. 

      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.
  • 04/01/2019 9:03 AM | CAI Rocky Mountain Chapter (Administrator)

    By John O’Sullivan, VDA Elevator Consulting

    There are not a lot of positive choices to finish that sentence with, so if you didn’t respond with a positive word or phrase in the blank, then you need to ask yourself a few questions. 

    Is my Elevator Service Provider doing their job properly? 

    Has my elevator reached the end of its life expectancy and is it just worn out? 

    Do my tenants abuse the equipment?

    Do I have the wrong type of elevator to meet my needs? 

    Is my building properly elevatored? 

    These are some of the major issues that are discussed with property owners and managers every day. So often, they want their elevator equipment to run dependably, but just can’t seem to get the reliability they so badly need.  Typically, they call their elevator contractor and place a service call, and the contractor comes out and fixes it.  But, soon enough, it breaks down again. It’s a vicious cycle. 

    So how do we stop the cycle? Let’s talk about each of these scenarios separately. 

    Is my Elevator Service Provider doing their job properly?

    Unfortunately, many companies throughout the industry perform “Call Back Maintenance” which means that they typically only perform routine maintenance when the unit breaks down and they must go there to repair it. The issue is, often they come in and return the elevator to service, and then quickly leave, never having actually fixed the problem or performed routine maintenance. Hence, the vicious cycle.  A building manager needs to read their maintenance agreement and understand what the elevator contractor’s responsibilities are. If the maintenance agreement reads “regularly and systematically” as a definition for the frequency of maintenance, then that’s a big part of the problem. Your maintenance agreement is not written in your favor. It needs to have a clear and well-defined scope with performance requirements specific to your building.  Too often owners and managers sign maintenance agreements that are written by the elevator contractor. These typically include automatic renewal clauses that lock you in for extended contract durations. Building management should only sign a maintenance agreement that is written in their favor, so that it protects the building owner’s investment and protects management’s best interests. The building management company should also meet with the elevator maintenance contractor quarterly if possible, but at least twice a year, to discuss reoccurring issues and develop strategies to help improve elevator performance. Annual “Quality Control Evaluations” by an independent elevator consultant can help keep your finger on the pulse and help prevent ever getting caught in this vicious cycle to begin with.  

    Has my elevator reached the end of its useful life expectance and is just worn out? 

    When an elevator starts reaching the end of its life expectancy, which is typically 20-25 years, then it is time to start planning for an Elevator Modernization.  There are many factors that can contribute to the decision-making process, particularly in a commercial or residential building. Poor maintenance practices and a general dissatisfaction with elevator service are important, but not necessarily the primary reasons to modernize. Just like any other piece of machinery, it will reach a point where modernization must occur. It’s up to you to make sure that you have done your “Modernization Due Diligence” to confirm that you have reached that point.  Obsolesce is a buzzword often thrown around in the industry. Remember, just because your Elevator Contractor says a component is obsolete, doesn’t necessarily make it true.  In fact, it is seldom true and there are often other ways to repair and improve the equipment’s performance and maximize its life cycle until you can afford to modernize the elevator properly. There are usually several costly building related items that will need to be performed as well when a modernization takes place, so make sure to have all these items identified and budgeted for. This is an expensive undertaking and the process can be a very frustrating and confusing. Make sure to have someone experienced in your corner that will guide you through the process and help protect your interests and help to ensure that the project runs smoothly, as well as provides you with the best possible equipment for the next 20-25 years.  

    Do my tenants abuse the equipment?

    On occasion, no matter how well an elevator is maintained, or how new the equipment is, the elevator continues to shut down due to user abuse or “vandalism.”  While this is extremely frustrating, it can be very difficult to control, and costly to repair. In certain situations, vandal resistant buttons and vandal resistant cab interiors can be installed to help minimize the damage. Cameras can also be installed to monitor the situation, but they do create added liability if you don’t monitor them properly. Adding card readers and key switches are often the best solution and keep the vandals out of your elevators.   

    Do I have the wrong type of elevator to meet my needs? 

    Many times, owners try to take “Passenger Elevators” and make them perform like “Service Elevators” or “Freight Elevators.” Typically, passenger elevators are not designed to handle this type of abuse and will quickly become damaged and dilapidated. Modifications can be made to beef up a “Passenger Car” and convert it into a “Service Car,” improving its overall durability. A “Freight Elevator” is a completely different animal due to its vertical bi-parting doors and extra heavy-duty cab interior. This freight car transformation can be very costly and often isn’t necessary.

    Is my building under elevatored? 

    Many buildings have been transformed since they were originally designed.  Their tenant populations have dramatically increased and yet the quantity of elevators available to handle the increased traffic flow has remained the same. Some improvement can be obtained through modernization. The only way to tell for sure how much improvement can be obtained is by conducting a “Building Traffic Analysis” where the population and building layout are all taken into consideration and studied to determine what improvements are actually achievable. Advances in Destination Dispatching and increased elevator speed can add up to a significant improvement. A few seconds saved here and there at each stop can result in a dramatic improvement. 

    At the end of the day, it’s your responsibility to take control of your elevator situation. It will be through your diligence and proactive involvement that will allow you to someday honestly fill in the blank with: My elevator runs like a “A Champion”, “A Fine-Tuned Machine”, or “A Swiss Watch”.

    VDA is the world’s largest elevator consulting firm that assists our clients with Project Design, Quality Control Evaluations, Maintenance Contract Documents, Modernization Documents, and Project Bids on new and existing elevator and escalator equipment. VDA has a local office in Littleton, CO.  For more information, contact John at josullivan@vdassoc.com.

  • 04/01/2019 9:01 AM | CAI Rocky Mountain Chapter (Administrator)

    By Bo Burns, SOLitude Lake Management 

    Algae: it comes in many forms and colors. It’s slimy, stinky and can ruin the beauty and function of your community lakes and ponds. It’s also one of the oldest known organisms on this planet, which might explain its knack for survival, even under the toughest conditions. Over time, HOAs and property management companies have learned to pick sides when it comes to the safe eradication of stubborn and harmful algal blooms—some in favor of natural management techniques; others in support of applying EPA-registered algaecides to ensure the job gets done. But this year, a new game changing technology will make the management of stubborn algae blooms a no-brainer with more long-lasting results that are beneficial for the environment. 

    Nanobubble aeration is a premium innovative technology designed to exceed the capabilities of traditional lake and pond aeration systems by providing up to 79,000x more oxygen! Put simply, nanobubbles are like traditional aeration systems on steroids. Produced by compact on-shore generators, these ultra-fine bubbles are completely invisible to the eye and about 1 million times smaller than ordinary bubbles. As a result of their tiny size, nanobubbles have no natural buoyancy and do not rise to the surface of the water and burst like you might expect. Amazingly, they remain within the water column for up to 2-3 months, providing unparalleled oxygenation to struggling lakes and stormwater ponds in your community.  

    The benefits of a continuously oxygenated lake or pond are enormous. First, oxygen is a key player in the battle against undesirable nutrients by facilitating the conversion of phosphorus to forms that do not sustain algae development. Excess nutrients can easily enter community lakes and ponds in the form of grass clippings, lawn fertilizers, trash, and droppings from dogs, geese and other wildlife. The presence of oxygen also helps to balance pH and other related water quality parameters that encourage the growth of fish, native organisms and beneficial phytoplankton – rather than detrimental bacteria like E. Coli, and cyanobacteria species that can be toxic to humans and wildlife and are believed to contribute to degenerative diseases like ALS, Alzheimer’s and Parkinson’s.  

    Another amazing benefit of nanobubbles? In addition to engulfing an entire aquatic ecosystem in concentrated oxygen, nanobubbles are negatively charged and, therefore, attracted to positively charged organic matter in the water column. When they connect with positively charged metals and pollutants, including dangerous cyanobacteria toxins, nanobubbles cause them to implode(!), holistically cleansing the waterbody from the inside out.

    This innovative water quality solution did not just appear overnight. Nanobubbles have been used in the medical field, the oil and gas business, food preparation areas, and even the beauty industry for purification purposes. However, SOLitude Lake Management is the first environmental firm to advance this technology for large-scale freshwater management applications through continuous research and development with select manufacturers and regulatory agencies. 

    Through many promising tests and trials, we’ve learned some exciting things: Property owners who utilize nanobubbles can expect to significantly reduce and even eliminate reliance on traditional algaecides. Nanobubbles have no negative impacts on fish and wildlife when monitoring and managing dissolved oxygen levels—in fact, research suggests nanobubbles help make fish more active, leading to better fishing and recreation. Nanobubbles help strengthen the health and longevity of the entire food chain, starting from the smallest beneficial organisms in your pond and ending with your family.  

    Nanobubble aeration isn’t just a quick fix or band-aid; it’s a custom, data-driven solution rooted in years of scientific study and first-hand monitoring experience. The technology doesn’t necessarily replace regular proactive management strategies, but it is truly one of the missing pieces to the puzzle of sustainable freshwater management. Used in conjunction with traditional tools like floating fountains, buffer management, mechanical hydro-raking and regular lake and pond inspections, nanobubbles can help keep your water resources healthier and prettier for much longer periods of time, while eliminating nuisance algae and dangerous cyanotoxins before they begin causing problems. 

    Nanobubble aeration is poised to transform the entire way we approach the management of lakes and ponds and will be an invaluable tool as urban development and undesirable nutrient loading continue to increase. We’re excited to shepherd this new technology in to the freshwater management realm and look forward to further enhancing water quality in your community and throughout the world. 

    Bo Burns is a Market Development Manager at SOLitude Lake Management, an industry-leading environmental firm. He specializes in the research and development of new technologies using more than 30 years of industry experience along with a Master of Environmental Management degree in Resource and Wetland Ecology from Duke University. This article is the first in a series featuring new break-through technologies that will revolutionize the management of lakes, stormwater ponds, wetlands and fisheries in 2019. Learn more at www.solitudelakemanagement.com/knowledge

  • 02/01/2019 7:14 AM | CAI Rocky Mountain Chapter (Administrator)

    By Shane Fleener, Hearn & Fleener, LLC

    Most homeowners and community managers know that Colorado’s Common Interest Ownership Act (“CCIOA”) gives homeowner associations (“HOAs”) the right to assert a construction defect claim on behalf of the HOA and/or the community’s homeowners.  However, there is a common assumption that this right only belongs to HOAs consisting of multi-family units (such as townhomes, row homes or condominiums).  That assumption is incorrect.  Single-family home HOAs have the same rights under CCIOA as any other HOA.  This includes the ability to assert claims for defects impacting the single-family homes and lots that are otherwise owned and maintained by the homeowners.   

    The misconception that multi-family HOAs, but not single-family HOAs, have standing under CCIOA likely stems from the assumption that HOAs only have standing for common elements, or those portions of the community that the HOA otherwise owns or maintains.  After all (when compared to their multi-family HOA counterparts), single-family home communities generally have fewer common elements that are owned and maintained by the HOA, and more lots / homes that are owned and maintained by the individual homeowners.   However, none of this has any bearing on whether an HOA has standing under CCIOA.  While some other states make exceptions for single-family home communities, Colorado is not one of them.  

    CCIOA states that an HOA has the power to assert claims “in its own name on behalf of itself or two or more-unit owners on matters affecting the common interest community.”  C.R.S. § 38-33.3-302(1)(d).  This is the only limitation to an HOA’s standing.   Therefore, the question becomes: what is a “matter affecting the common interest community?”

    First, common elements are not the only things that constitute a “matter affecting the common interest community,” as individual homes/units are also included.  CCIOA defines a “unit” as “a physical portion of the common interest community which is designated for separate ownership or occupancy.”  As a result, multiple courts have confirmed that defects impacting individual units are “matters affecting the common interest community” under CCIOA.  Yacht Club II Homeowners Ass'n, Inc. v. A.C. Excavating, 94 P.3d 1177, 1179 (Colo. App. 2003).  Detached single-family homes are “units” under CCIOA in the same way that condo and townhomes are.  

    Second, the fact that an HOA might not own the unit (or any other area of the community impacted by defects) is irrelevant to an HOA’s standing under CCIOA.  In fact, the Uniform Act (upon which CCIOA is based) expressly states that an “association can sue or defend suits even though the suit may involve only units as to which the association has no ownership interest.”   For this and other reasons, Colorado courts have confirmed that HOAs have the right “to pursue damage claims on behalf of two or more units’ owners with respect to matters affecting their individual units.”  Id. at 1180.  

    Third, the manner in which a community’s governing documents happen to allocate repair and maintenance obligations between the HOA and the individual homeowners is irrelevant.  As articulated by one court: “Provisions stating that the Association and individual owners have separate maintenance duties under the Declaration have no bearing on the Association’s standing under the CCIOA.”  Heritage Vill. Owners Ass'n, Inc. v. Golden Heritage Inv'rs, Ltd., 89 P.3d 513, 515 (Colo. App. 2004).  

    The result of all this: Single-family home HOAs have the right under CCIOA to sue builders for construction defects impacting any portion of the common interest community, regardless of whether those defects are impacting individual homes or common elements and regardless of whether the HOA owns and/or is responsible for repairing and maintaining the impacted improvements.  It is important that single-family home HOAs, and the community managers that work with them, be aware of these rights. 

    Shane Fleener is a partner and litigator at Hearn & Fleener, LLC located in Denver, Colorado. Hearn & Fleener is plaintiff’s law firm focused on housing and construction defect issues. For more information about Shane and his law firm, please check out their website www.HearnFleener.com 

  • 02/01/2019 7:12 AM | CAI Rocky Mountain Chapter (Administrator)

    By Lindsay Smith, Winzenburg, Leff, Purvis & Payne, LLP.

    “You work for me!”

    Well, no, I actually don’t.  Every community association professional has had a homeowner demand a particular action because, “You work for the homeowners, you work for me!”  That isn’t exactly true, and it’s precisely false in the context of a community association attorney.  Blurring a vendor’s lines between a homeowner’s request and a Board’s request might be a minor concern when planting annuals outside a patio home, but it is a major ethical problem if the “vendor” is an attorney.

    Colorado attorneys are governed by the Colorado Rules of Professional Conduct.  Rule 1.13 details an attorney’s duties and obligations when that attorney represents an organization – such as a homeowners association.  

    First and foremost, the attorney represents the corporate entity itself, “acting through its duly authorized constituents.”  This is typically the Board of Directors, but the attorney does not represent the Board of Directors.  As an organization’s attorney, I have additional ethical duties to homeowners and members of the public.  Specifically, when dealing with directors, officers, members, or other constituents who may have interests adverse to my client’s interests, I must explain that I represent the corporate entity and not that director, officer, member, or other constituent.  

    This circumstance could arise when a homeowner attempts to initiate a popular Bylaw amendment at an annual meeting.  I am obligated to explain that while an amendment to prevent Carol from serving on the Board because she snubbed Rose at bingo last month might sound like a good idea, it’s not an action that is legal to take at that meeting.  While all the homeowners present might want to take that action (everyone really hates Carol), it is simply not legal.  My duty is to help the corporate entity stay on the right side of the law – and the right side of the law does not include personally-motivated and improperly-noticed Bylaw amendments.

    Similarly, other community association vendors need to keep their clients in mind.  A paving contractor does not report to Carol or Rose; the contractor reports to the Board or the community association manager.  The contractor needs to take direction from those who control the corporation (and its purse strings).  If a contractor decides to follow Carol’s dictates, that contractor may find himself in breach of the contract with the community association.  Carol might find herself personally liable for her instructions.  Avoid this situation and protect yourself, your clients, your vendors, and your homeowners from confusion and unnecessary expenses by ensuring that only the parties who can bind the corporate entity attempt to do so.

    Lindsay Smith is an attorney with Winzenburg, Leff, Purvis & Payne, LLP.  She represents communities as general counsel in a variety of legal circumstances, from governance and policy considerations to litigation and enforcement.  When not attending community association meetings for clients, she relaxes by attending community association meetings.

  • 02/01/2019 7:09 AM | CAI Rocky Mountain Chapter (Administrator)

    By Lisa Greenberg, Gravely Pearson

    Catastrophic hail storms are an unfortunate and increasingly common reality throughout Colorado’s Front Range, causing hundreds of millions of dollars of damage every year.  In 2017, a hail storm severely damaged the Colorado Mills mall in Lakewood, breaking open skylights and severely damaging the mall’s roof, allowing rainwater to flood the mall’s stores.  It took more than six months for repairs to be completed before the mall could re-open.  However, these hailstorms are indiscriminate, damaging condo and townhome communities as well.  The increase in destructive storms has caused a simultaneous increase in large insurance claims.  This has prompted insurance companies to push back on policyholders attempting to recover property loss benefits.  That pushback has led to litigation, where homeowner associations have been forced to sue their insurance carriers.  This insurance litigation has resulted in some interesting trends that multi-family communities and managers should be aware of as they work together during the insurance claims process:

    1. Timely Reporting: Most insurance policies require HOA policyholders to report damage to the insurance company “promptly.”  Unfortunately, these policies do not define what “prompt” means, leaving the interpretation of this vague term up to a court.  Many of these cases end up in federal court.   Our federal courts have identified two separate issues related to the question of prompt notice.  Some courts have focused on the deadline for when the prompt notice timeline begins to run, finding that whether notice is “prompt” relates solely to the date the damage occurs, rather than from when the HOA knows about the damage.  Other courts have focused more on the length of time between the occurrence and/or knowledge of the damage and when the notice is given to the insurance company.  In those cases, courts have sometimes indicated that HOAs failed to provide prompt notice when they failed to report damage within a few months after the damage occurred.  In all cases, however, the courts have found that if damage is not reported “promptly,” the insurance company may be able to deny the claim in its entirety.  This has given insurance companies a lethal advantage. 

    These court rulings are of specific concern to multi-family communities because many hailstorms are not as obviously destructive as the one that hit the Colorado Mills.  Instead, storms often damage roofing systems multiple stories off the ground and leave little evidence of damage to those observing from ground level.  Because hailstorm damage is not always obvious, and the consequences of failing to report damage promptly can be significant, HOA owners, members of the Board of Directors, and management would be wise to implement measures that allow for the prompt discovery and reporting of hailstorm damage.  In addition to being exceptionally vigilant and diligent in discovering and reporting damage, owners, Board members, and management should also be educated on when to investigate possible storm damage, even when such damage is not immediately visually apparent, so that insurance claims can be discovered and “promptly” made. 

    1. Contingent Management Fees: While HOAs must focus on prompt reporting of a loss to the insurance company, other trends in insurance law have put a spotlight on how HOAs handle insurance claims once they are reported.  Many HOAs handle insurance claims through assistance from their management companies.  Some management companies help manage the claim and are compensated with a percentage of the total amount of the claim ultimately paid by the insurance company because the work performed is outside of their regular duties as property managers.  While this takes the grunt-work off the back of the Board of Directors and means that HOAs do not have to pay out-of-pocket for the (sometimes voluminous) work that goes into making an insurance claim, these contingency-based agreements have also created an opening for insurance companies to attack the legitimacy or amount of the insurance claims.  From the perspective of the insurer, when a management company has a contingent interest in the outcome of an insurance claim, the insurance company may attack the validity of the claim by arguing that the management company has an interest to inflate the claim.  While these agreements are not improper, rest assured, insurance companies are learning about our industry and are using certain trends against HOAs in litigation.

    Notably, this contingent-fee “issue” shows up in other ways in some insurance-related disputes.  For example, Public Adjusters, like management companies, also often forego immediate payment in lieu of a percentage of the amount of the claim ultimately paid by the insurance company.  Similarly, some contractors may agree to repair the damage for whatever amount the insurance company ultimately decides to pay, regardless of the true value of the work.  Some insurance companies argue that these contingent-type fee agreements also create the appearance of improper claim inflation.  Regardless of its truth, this appearance can be damaging to the claims process and can create a significant roadblock to the policyholder collecting the full value of their claim.   

    1. Counterclaims: With insurance losses on the rise and insurance companies learning more about the business relationships between HOAs, management companies, and other entities assisting with the insurance claim process, some insurance companies are turning more and more to scorched-earth tactics to intimidate policyholders and avoid paying out on valid insurance claims.  In perhaps the most significant modern trend in Colorado insurance law, insurance companies have been attempting (sometimes successfully) to turn an HOA’s failure to report a claim within a “reasonable time” (regardless of the HOA’s knowledge of the damage) and the HOA’s payment of contingent fees to entities helping with such claims, into counterclaims based on allegations of fraud or misrepresentation.  Most insurance policies have clauses that allow insurance companies to terminate their policy, and even recoup insurance benefits that were previously paid out should such conduct be proved to occur.  The typical allegations are that the HOA policyholder and its agents are inflating the claim or withholding relevant information from the insurance company.

    Not surprisingly, allegations of fraud against an HOA are highly damaging both to a community’s ability to recover on a claim, and to the HOA industry in general.  These counterclaims are changing the perception courts and laypeople have about insurer-insured disputes, suggesting the insurance company is the “victim” and the HOA is the perpetrator.  Most importantly, insurance companies’ newfound boldness in bringing these fraud counterclaims, and their current success in doing so, has, from all appearances, inspired insurers to continue their practice of disputing and/or refusing to pay on legitimate insurance claims.  

    In order to more easily navigate the insurance claim system in light of the modern trends in Colorado’s insurance law, homeowners, Board members, and managers must strive to educate themselves on best practices in handling their insurance claims to prevent insurance companies from gaining additional leverage in court.  With the concerns noted above in mind, multi-family communities are poised to turn the tide on insurance-related claims throughout the Front Range and Colorado in general.  

  • 02/01/2019 7:07 AM | CAI Rocky Mountain Chapter (Administrator)

    By Damien Bielli, Vial Fotheringham

    The annual meeting has concluded, and you find yourself on the Board of Directors of your community association. What now? Hopefully, the association has an orientation process in place to help new board members assimilate into a governing role in the community. If not, here are some helpful tips for board members:

    If an association email address is not provided to a board member, create one. A separate and distinguishable email address for community association business is necessary for continuity of board communication and protection of personal email content.   

    Read and know your governing documents. The origin of association authority, its limitations, and permissible conduct comes directly from the association’s governing documents and applicable state and federal law. CCIOA (Colorado Common Interest Ownership Act) provides the statutory guidance for many associations with restrictions on governance that must be taken into consideration by acting board members. 

    The importance of knowing your governing documents cannot be understated. Board members should understand the hierarchy of governing documents and laws that regulate the association. At the highest level, the association must act in accordance with federal and state law. However, usually the most important and most relevant tool for governing an association is the declaration. A declaration, also known as the CC&Rs, is the primary governing document that creates the rights and obligations of owners in a homeowner’s association. This document provides a blueprint for the authority granted to the association, as well as its obligations to homeowners. As a board member, it is imperative that you are familiar with the declaration’s contents. Bylaws govern the operations of the association. Items such as board elections, meetings, voting and board member responsibilities are a few of the items bylaws may govern. Board members should be familiar with how the association is run so its operation does not run afoul of the stated procedures within the bylaws.  

    Board members also must remain knowledgeable of all aspects of association finances, including reserves, expenditures, assets, and budgets. As soon as is practicable, a new board member should request to review the finances and request clarification if necessary. This ensures that the new board member is speaking, acting, and voting from an informed position. 

    It is also wise to for board members to continually educate themselves about issues occurring outside the meeting room by walking the property, talking to members, talking to the manager, and participating in all meetings. This gives each board member an opportunity to see, hear, and discover issues within the community before they become a problem.

    Finally, document, document, document. Failure to document is an association’s and, similarly, a board member’s Achilles’ heel. While a board member may have acted promptly, prudently, and in accordance with the governing documents, failure to produce documentation to that effect is difficult to explain and usually results in trouble for the association. Any documentation received by the association, especially opinions of experts (attorneys, contractors, accountants, etc.) should be shared with every board member and retained and filed where easily accessible. The board is entitled to rely on the opinion of experts in its decision-making and, therefore, should retain the opinion as evidence of good faith.

    Having the right tools can ensure that being a Board member can be a rewarding and beneficial experience.  

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