HOA Today Recaps

Charging your Electric Vehicle in a Homeowners Association

Renewable energy is an important part of Colorado's plan to become more energy efficient. More and more car manufacturers are producing hybrid and electric vehicle models. This is great news for those who would prefer to drive more environmentally friendly cars. However, for some, the challenges of installing a charging unit or modifying their current outlets can be quite burdensome.

Living in an HOA with an electric or hybrid vehicle has its own set of challenges. In 2013, the State Legislature passed SB13-126, which concerned the removal of unreasonable restrictions on the ability of an owner of an electric vehicle to access charging facilities. The language in this bill, in part, encourages and creates accommodations for owning an electric vehicle.

Section 38-33.3-106.8 of the Colorado Common Interest Ownership Act states that an HOA shall not:

• Prohibit a unit owner from using, or installing at the unit owner's expense for the unit owner's own use, a level 1 or level 2 electric vehicle charging system on or in a unit;

• Assess or charge a unit owner any fee for the placement or use of an electric vehicle charging system on or in the unit owner's unit; except that the association may require reimbursement for the actual cost of electricity provided by the association that was used by the charging system or, alternatively, may charge a reasonable fee for access.

Keep in mind that associations may still adopt and enforce rules regarding bona fide safety requirements, consistent with applicable building code or recognized safety standard; requirements that the charging system be registered with the association within thirty days after installation, and; reasonable aesthetic provisions that govern the dimensions, placement, or external appearance of an electric vehicle charging system

What CCIOA Says About Initiating Construction Defect Actions

There are lots of reasons why someone may have issues with the workmanship of a particular project. When this occurs with your painter or mechanic, the issue is typically resolved via a settlement, specific performance or perhaps small claims court. However, when the issue of workmanship is on a larger scale and the workmanship in question calls into doubt the overall condition of particular housing units, construction defect actions usually follow.

The Construction Defect Action Reform Act

Section 13-20-801 of the Colorado Revised Statutes, also known as the Construction Defect Action Reform Act (“CDARA”), contains additional information regarding construction defect actions in Colorado. While this article will speak only to the information contained in the Colorado Common Interest Ownership Act (“CCIOA”), if you have any additional questions, you should review both CCIOA and CDARA with legal counsel.

Section 38-33.3-303.5 of the Colorado Common Interest Ownership Act discusses various requirements for instituting a construction defect action. Some of the more salient points are listed below for informational purposes. Remember to always consult an attorney when considering a construction defect action.

Notice and Meeting to Consider Commencement of a Construction Defect Action

• Before an executive board institutes a construction defect action, they must mail or deliver written notice of the anticipated commencement of the construction defect action to each unit owner at the owner's last-known address described in the association's records and to the last-known address of each construction professional against whom a construction defect action is proposed. Except that this notice requirement does not apply to construction professionals identified after the notice is mailed, or; joined parties in a construction defect action previously approved by owners.

  • This notice must call a meeting of the unit owners, which must be held no less than ten days and no more than fifteen days after the mailing date of the notice, to consider whether to bring a construction defect action. A failure to hold the meeting within this time period voids the subsequent vote. A quorum is not required at the meeting. In no event shall the time period for providing the notice, holding the meeting, and voting exceed ninety days.

• The notice must state that:

  • The conclusion of the meeting initiates the voting period, during which the association will accept votes for and against proceeding with the construction defect action. The disclosure and voting period shall end ninety days after the mailing date of the meeting notice or when the association determines that the construction defect action is either approved or disapproved, whichever occurs first.

  • The construction professional against whom the construction defect action is proposed will be invited to attend and will have an opportunity to address the unit owners concerning the alleged construction defect.

  • The presentation at the meeting by the construction professional or the construction professional's designee or designees may, but is not required to, include an offer to remedy any defect in accordance with section 13-20-803.5 (3) of the "Construction Defect Action Reform Act".

• The notice must also contain a description of the nature of the construction defect action, which identifies alleged defects with reasonable specificity, the relief sought, a good-faith estimate of the benefits and risks involved, and any other pertinent information.

• The notice must also contain several disclosures, ranging from the possibility of increased costs associated with the maintenance and/or repair of the construction defect to information regarding the responsibility of the association to pay for legal costs if the construction defect action is unsuccessful. For a full list of the required disclosures, please see section 38-33.3-303.5(1)(c)(III).

• The association must maintain a verified owner mailing list that identifies the owners to whom the association mailed the notice. The verified owner mailing list must include, for each owner, the address, if any, to which the association mailed the notice. The association must provide a copy of the verified owner mailing list to each construction professional who is sent a notice, at the required owner meeting. The owner mailing list must be deemed verified if a specimen copy of the mailing list is certified by an association officer or agent. If the association commences a construction defect action against any construction professional, the association must file its verified owner mailing list and records of votes received from owners during the voting period with the appropriate forum under seal.

• The substance of a proposed construction defect action may be amended or supplemented after the meeting, but an amended or supplemented claim does not extend the voting period. The executive board must give notice to unit owners of any amended or supplemented claim and must maintain records of its communications with unit owners. Owner approval is not required for amendments or supplements to a construction defect action made after the initial notice is sent.

Approval by Unit Owners

• Notwithstanding any provision of law or any requirement in the governing documents, the executive board may initiate the construction defect action only if authorized within the voting period by owners of units to which a majority of votes in the association are allocated. Such approval is not required for an association to proceed with a construction defect action if the alleged construction defect pertains to a facility that is intended and used for nonresidential purposes and if the cost to repair the alleged defect does not exceed fifty thousand dollars. Such approval is not required for an association to proceed with a construction defect action when the association is the contracting party for the performance of labor or purchase of services or materials.

• Notwithstanding any other provision of law, an owner's vote must be submitted only once and may be obtained in any written format confirming the owner's vote to approve or reject the proposed construction defect action. The association must maintain a record of all votes until the conclusion of the construction defect action, including all appeals, if any.

Vote Count - Exclusions

• For purposes of calculating the required majority vote under this subsection (1)(d) only, the following votes are excluded:

  • Any votes allocated to units owned by a development party;

  • Any votes allocated to units owned by banking institutions, unless a vote from such

an institution is actually received by the association;

• • Any votes allocated to units of a product type in which no defects are alleged, in a common interest community whose declaration provides that common expense liabilities are not shared between the product types;

  • Any votes allocated to units owned by owners who are deemed nonresponsive. If the status of the nonresponsive unit owners is challenged in court, the court shall consider whether the executive board has made diligent efforts to contact the unit owner regarding the vote and may consider: Whether a mailing was returned as undeliverable; whether the owner appears to be residing at the unit; and whether the association has used other contact information, such as an electronic mail address or telephone number for the owner.

Notice to Construction Professional

• At least five business days before the mailing of the required notice to unit owners, the association shall notify each construction professional against whom a construction defect action is proposed by mail, at its last-known address, of the date and time of the meeting called to consider the construction defect action.

Keep in mind that there are many factors involved in considering the initiation of a construction defect action, and the procedure which associations are required to follow is but one of them. Always consult an attorney when considering a construction defect action.

Political Signs and HOAs

Can a homeowner in an HOA place political signs in their yard or at their condominium?

The short answer is - yes. There are laws that protect a homeowner’s right in a common interest community (commonly known as an HOA) to place political signs on their property. With an election ​day coming up on Tuesday, Nov. 3, homeowners may have already begun posting political signs in their neighborhoods. Homeowner Associations need to follow the Colorado statutory conditions allowing homeowners to express their political expression during this election season, and homeowners need to adhere to those statutory prohibitions and any regulations put in place by their association pursuant to the law.

The Colorado Common Interest Ownership Act (CCIOA), addresses this issue in Section 38-33.3-106.5, C.R.S., entitled “Prohibitions contrary to public policy - patriotic and political expression...”. In summary, this law states that notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not prohibit the display of a political sign by the owner or occupant of a unit on property within the boundaries of the unit or in a window of the unit; however, the association may prohibit the display of political signs earlier than forty-five (45) days before the day of an election and later than seven (7) days after an election day.

In addition, the association may regulate the size and number of political signs. Those regulations allow the HOA to only permit at least one (1) political sign per political office or ballot issue that is contested in a pending election. Also, the HOA can set the maximum dimensions of each sign, which may be limited to the lesser of the maximum size allowed by any applicable city, town, or county ordinance that regulates the size of political signs on residential property, or thirty-six (36) inches by forty-eight (48) inches.

Section 38-33.3-106.5(c)(III) of CCIOA defines “political sign” as meaning “a sign that carries a message intended to influence the outcome of an election, including supporting or opposing the election of a candidate, the recall of a public official, or the passage of a ballot issue.” If you have any questions as to the applicability of section 38-33.3-106.5 to your specific circumstances, please consult with a licensed Colorado attorney who specializes in community association law.

For more information about living in an HOA and your rights as homeowners, please visit the Division of Real Estate’s HOA Information and Resource Center website at dre.colorado.gov/hoa-center.

The HOA Office registers and collects information concerning HOAs, including an HOA’s contact information, and handles consumer inquiries and complaints from homeowners. The HOA Office provides assistance and information to homeowners, HOA boards, declarants and other interested parties concerning their rights and responsibilities pursuant to the Colorado Common Interest Ownership Act (“CCIOA”).

Tips on Winterizing your Community

It may not feel like it, but winter is coming! While Colorado is a microcosm of weather from seemingly every climate, winter undoubtedly brings with it a routine of preparation when you are a homeowner. Below are some tips from an article by property management company, FirstService Residential, on ways to help your HOA winterize your community. Always be sure to contact your Board of Directors or management company regarding maintenance or repair of any common areas. You should not attempt to work on common areas or association owned property without explicit, written permission from your Board or management company.

Protect Your Pipes

One thing nearly all associations know – when temps start to freeze, pipes often follow. This winter, your community association can help reduce the likelihood of freezing pipes and the resulting damage by following these tips:

• Add insulation to all exterior pipes that are vulnerable to freezing;

• Place a tarp over any outbuildings with temperature-sensitive piping;

• Adequately heat attics, floor spaces, basements, stairways and storage areas during cold spells;

• Seal doors and windows to prevent drafts near pipes;

• Drain water from wet pipe sprinklers during cold weather;

• Turn off outdoor faucets during the winter;

• Make sure any pools or hot tubs are properly drained and protected for the winter.

Inspect the HVAC System

Before winter hits full force, schedule a full HVAC system inspection to make sure all equipment and systems are in good working order – and if not, make any necessary repairs. Now is the time to prepare the furnace to efficiently heat throughout the winter, as well as to address any air conditioning system problems that may have occurred over the summer.

Plan for Snow Removal

Snow removal is practically inevitable and always a huge responsibility for your HOA, so discuss with your Board or management company about finalizing your community’s game plan before the first snowflakes fall. The Board or management company should start by reviewing last year's budget to determine how effectively your community was able to cover snow removal services and make any adjustments necessary.

Plan for Power Outages

If your community is located in an area where ice storms or high winds are common, you can probably expect one or more power outages this year – and they can be especially dangerous for residents when temperatures plunge. Depending on where in the state your community is located and the budgetary resources available, you may want to discuss with your Board and/or management company the use of generators to provide heat and light in essential areas – for example, where drafts are common, where pipes may freeze and where there is no natural light, such as emergency staircases.

Clean and Inspect the Fireplace

When temperatures plunge, there’s nothing more delightful than sitting in front of a cozy fireplace – unless that fireplace is a safety hazard. Have them professionally cleaned and inspected before winter hits to ensure the safety of your home. If your fireplaces are wood-burning, it’s a good idea to stock up on firewood, but reduce fire hazards by storing it in a dry place, away from the walls, preferably in an exterior location such as a storage shed or garage.