House Bill 08-1135 pertaining to disabled persons, the fining process, and alternative dispute resolution became effective in Colorado law on July 1, 2008.
Disabled Persons
A new section was added to CCIOA (the Colorado Common Interest Ownership Act -- C.R.S. 38-33.3) that prohibits Associations from prohibiting "reasonable modifications to a Unit or to common elements as necessary to afford a person with disabilities full use and enjoyment of the unit in accordance with the Federal 'Fair Housing Act of 1968.'
The Colorado Fair Housing Act as well as the Federal Fair Housing Act already required reasonable accommodation for persons with disabilities, so this doesn't really add anything "new" to the law. It does place the provisions within CCIOA, however.
Due Process for Imposition of Fines
CCIOA previously required notice and an opportunity to be heard before fines could be imposed. In 2005, Senate Bill 100 amended CCIOA to require Associations to adopt a covenant enforcement policy with a fine schedule. House Bill 08-1135 adds a new subsection that goes into more detail as to the fining process.
It provides:
a. that the Association cannot levy fines unless it has adopted and follows a written policy concerning the imposition of fines.
b. that the policy must include a fair and impartial fact-finding process to determine whether the violation actually occurred and whether the owner is the one who should be held responsible for the violation. The process can be informal, but it must guarantee to the owner notice and an opportunity to be heard before an impartial decision maker.
c. that an impartial decision maker is a person(s) who have authority to make the decision concerning the violation and who do not have any direct personal or financial interest in the outcome. A decision maker does not have a direct personal or financial interest in the outcome if the outcome will not benefit them or be detrimental to them
d. that if the result of the determination is that the owner did not commit the violation or should not be held responsible, any costs associated with the fact-finding and determination cannot be assessed against the owner.
This law modifies association's covenant enforcement policies limiting who may participate in enforcement hearings. Existing Board members are not disqualified from being impartial decisions makers so long as they do not have an interest in the outcome of the hearing. Disqualifying situations may include situations in which a board member is a neighbor, has a personal history with the person in subject to enforcement. Both positive and negative history would disqualify the Director.
To be an impartial decision maker, the board members should not have any interest, either personally or financially with the outcome of the violation hearing. Board members having the above conflicts should abstain from the proceedings.
Alternative Dispute Resolution
HB 08-1135 adds a new subsection to CCIOA where the legislature endorses and encourages associations, owners, and managers to use availale public or private resources of ADR to resolve disputes. Even with this change, it does not make ADR mandatory prior to filing ligitation. ADR can only be engaged in if all parties agree.
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