Need To Amend Your Declaration But Can’t Get Enough Approvals?
By: Marc D. Sarmiento, Esq.
Having trouble garnering sufficient owner participation from your community association? Can’t get more than 5 owners to attend a meeting, much less meet a quorum to conduct association business? This is unfortunately very common for many associations, and it can pose a major obstacle when attempting to amend an association’s declaration.
As you may know, amending the declaration typically requires approval from a supermajority of owners in the community. Although Colorado law caps the owner approval requirement at 67% of the association vote in most cases, 67% approval is still a very high threshold to meet. Thus, if your association struggles to garner sufficient owner participation, amending the declaration can seem like a daunting, if not impossible, task.
To make things worse, some declarations also require approvals from the first mortgagees (i.e. the holders of the first deeds of trust) for amendments, which are nearly impossible to obtain. No need to worry because the Colorado Common Interest Ownership Act (“CCIOA”) is there for you.
Specifically, section 217(7) of CCIOA provides an alternative for associations struggling to amend their declarations but unable to reach the requisite owner and/or first mortgagee approval requirements: the court petition process. This process allows associations to petition Colorado’s district courts and request the courts approve their declaration amendments, which judges are required to do as long as the requesting association has jumped through all the hoops required by CCIOA.
Below are the general requirements set forth in CCIOA for associations to follow if they wish to take advantage of the court petition process:
- All owners must receive at least two written notices of the proposed amendment;
- The association must hold at least one owner meeting to discuss the proposed amendments;
- At least one half of the owners required under the existing declaration to approve amendments, must approve the proposed amendment;
- A petition must be prepared and filed with the district court for the county in which the association is located, requesting that the court approve the proposed amendment;
- This petition must include certain information required by CCIOA;
- Within three days of filing the petition, the court is required to schedule a hearing on the petition that is no earlier than 45 days and no later than 60 days after the date in which the association filed the petition;
- A notice of the petition and of the hearing must be sent to owners, mortgagees (if applicable), and declarant (if applicable) within 10 days after the hearing date is scheduled; and
- There cannot be objections filed with the court from more than 33% of the owners or first mortgagees (if applicable) or the declarant (if applicable).
The court petition process described above might be right for your association if it historically had trouble garnering sufficient owner participation. As you can see from the bullets above, the petition process essentially cuts the owner approval requirement in half and allows associations to further address and bypass any first mortgagee approval requirements contained in their declarations.
Should you have any questions on the court petition process, please do not hesitate to contact a HindmanSanchez attorney at (303) 432-9999.