Procedure Matters

One piece of advice we often give our community association boards is that the procedure used by an association to take any given action is often more susceptible to challenge than the action itself. In other words, how you do things is often easier to attack - successfully - than the actual action taken by an association. A recent case out of the Colorado Court of Appeals supports this viewpoint. In Tyra Summit Condominiums II Association, Inc. v. Clancy, No. 16CA1381 (Colo. Ct. App. May 18, 2017), the Court of Appeals of Colorado held that the Association's failure to give proper notice of a proposed declaration amendment invalidated the amendment. Colorado law requires that, before an association may amend its declaration, the association must have discussed it during at least one association meeting. At least 10 days before, but not more than 50 days before such a meeting, the association must deliver written notice to every owner. The notice must include the following: the meeting date, time, location, and agenda items; and it must specify at least the general nature of proposed amendments to the declaration. In the Tyra case, the Association notified owners in June of their August 1 meeting, but only stated that the board had been working with counsel to rewrite the declaration. The first notice did not specify, even generally, the nature of the proposed amendments. The draft of the amendment wasn't mailed to the owners until July 28 - 3 days before the meeting. Because the notices that were sent to owners did not meet the statutory requirements discussed above, the court found that the amendment was invalid. The lesson we can all take away is that how you do things matters at least as much as what action you are seeking to take. Whether it is adopting an amendment or something as "simple" as sending a fine notice, it's important to ensure your association is following proper procedure to avoid a future (successful) challenge of the action taken.