The Annual Homeowners Meeting is an often misunderstood meeting in many HOAs. Many Boards, and far too many Community Area Managers (CAMs) and HOA Attorneys think it is a meeting that they control. Some go as far as to limit participation or even exclude participation from homeowners on topics they’d prefer not to address or allow to be aired. Such censorship is not part fo the design, as much as it is normalized in many homeowner’s HOA experiences.
At Poudre Overlook, there’s been a variety of approaches. Prior to 2017, the HOA was basically run by 3 Directors who met informally with David Pond from Kellison Corporation, our CAM. They spent our money on meetings held at places like The Moot House – one of the most expensive restaurants in town. Director Perry Malisani once confided to me that he was uncomfortable with the arrangement, but that the “2 Bills” dominated that Board and did as they pleased – because no one noticed or challenged them. He encouraged participation and owner challenges as a democratic right.
When Kellison went out of bounds in 2016 and was caught wasting money and challenged on it, they quit. Only after their departure did we find people in the community who started to assert what they thought was the proper way to run an HOA. Not that anyone really took classes or had credentials, but they mostly talked about how long they had experienced something else somewhere else.
It was only in 2018 that some of us began to notice that there were actual statutes and parts of our Bylaws and CCRs that we weren’t following. President Keith Knight was the first to insist that we use Robert’s Rules of Order in December of 2018 (14 years into the HOA’s existence!) – with several Board Members protesting at the “formality” of it all. But, he was right: Our documents say we “shall” use Robert’s Rules, and it’s about far more than formality. It’s how we prevent “Tyranny of the Majority”, which is described in the preface of most copies and editions of the book. Democracy fails when there are not adequate checks and balances.
Since then, we’ve oscillated in compliance with the spirit and letter of not only Robert’s Rules, but also the myriad other details in our governing documents and state laws. We’ve struggled with allowing full participation, allowing recordings to ensure transparency, how we legally record our meeting minutes and keep them accurate, and how we allow topics to be raised at meetings and/or voted upon – both at Board Meetings and the Annual Homeowner’s Meeting.
So, how should the Annual Homeowner’s Meeting be organized and planned?
Colorado HOAs are governed by Title 38-33.3 which is known as CCIOA (Colorado Common Interest Ownership Act – pronounced Kiowa, like the Colorado County). Specifically, Section 38-33.3-308(1) speaks to HOA meetings. According to DORA (Department of Regulatory Agencies):
- “Unit Owner Meetings: Section 38-33.3-308(1) of CCIOA addresses the frequency with which association meetings should and may take place. Regarding meetings of the unit owners, CCIOA only requires that they meet once per year. This is why many people call this meeting the “Annual Meeting.” It is at this meeting that many HOAs will plan their budget ratification. Some may also schedule any elections for board member roles that may be opening up.”
So, while this generally describes how HOAs should have their “Annual” membership meeting, the fact of the matter is that they are only required to have on per year. So, it could be argued, for instance, that POHOA doesn’t need to have one at all this November (or December, or January), because there was one of these held in May and October. That is “technically compliant”, but is it right?
There’s no requirement on what is done at one of these meetings, including budget ratification or board elections – that’s just a best and perhaps normal practice. There’s no compliance with state law in doing so.
As for notice, while CCIOA requires notice no less than 10 days in advance and no more than 50 days in advance, our governing documents require notice by USPS Mail at least 30 days in advance. So, we’ve tended to honor this requirement over the history of POHOA.
Normally, we would see a letter go out to homeowners in October with the proposed budget, and then we would see, in some years, notice of an election. There’s no rules about whether to include information on who is running for office, how homeowners may add to the agenda, or whether other homeowner-initiatives may be voted upon. Yet, we’ve seen each of these things occur at one time or another in our past Annual Homeowner Meetings. We seem to sway with the whims of whomever is on the Board of Directors, as if such things should not be dictated by policy, or whether such policies should be determined by the Board at its sole discretion, or by the homeowners themselves.
OPEN FORUM
As some are aware, homeowners have an absolute right to speak before every vote on motions made by the Board of Directors. C.R.S. 38-33.3-308(2.5)(b) is clear:
- “At an appropriate time determined by the board, but before the board votes on an issue under discussion, unit owners or their designated representatives shall be permitted to speak regarding that issue. The board may place reasonable time restrictions on persons speaking during the meeting. If more than one person desires to address an issue and there are opposing views, the board shall provide for a reasonable number of persons to speak on each side of the issue.”
This applies to all Board Meetings, whether they are Regular (scheduled) or Special. And, there’s good arguments that when Action Without A Meeting (AWAM) is used, that the Board should solicit comments in writing. Otherwise, AWAM becomes a tactic for non-transparency, and keeping homeowner comments from being included, recorded, or considered. In fact, POHOA has done this a dozen or more times in 2021-22, we finally learned on 5/5/22 after a Document Request revealed the Board was both deleting deliberative emails (required by statute to be kept as Association Records) and wasn’t actually creating signature sheets (substituting “yes” emails, which isn’t allowed).
But, there’s something called an “open forum”, which is often misunderstood by Colorado HOA Boards and Managers (and attorneys). While not necessarily required by statute or even defined, Colorado HOA Attorneys have for many years recommended an Owner Forum as a best practice. Altitude Law, which POHOA has almost-hired several times (courted, let’s say) has this article in their resource library:
‘Homeowner (Resident) Open Forum
- Hold prior to commencement of actual board meeting.
a. Allows board to think about homeowners’ concerns before formally
discussed at meeting.
b. Provides cooling-down period for homeowners and board.
c. Allows homeowners to vent complaints early.“
Poudre Overlook HOA, however, has gone to extreme steps to do the exact opposite: To PREVENT homeowners from raising issues at meetings. Some Boards have simply shut down the ability to speak (via Zoom muiting), some have tried the arbitrary time-limits (as short as 2 minutes), and justified everything based upon “time” – the time of the Board members and those participating, etc. It’s been a ruse, however, to simply block some homeowners or some topics from being put on the official record – the meeting minutes.
There’s nothing requiring a Board to act on things brought up in the Open Forum. But, it does allow homeowners to influence other homeowners – and build political momentum either for representation or to petition for agenda items or votes.
The timing of the Open Forum should be at the beginning of any meeting, but in particular for Annual HOMEOWNER Meetings. We have now seen successive Boards use the tactic of declaring, often arbitrarily and capriciously, that “time’s up”, and sorry folks, there’s just no more time left for whatever it is that you wanted to talk about. Meeting adjourned!
Having an Open Forum at the beginning of the meeting stops that abusive practice.
THE USE OF PETITIONS
As we are now familiar, POHOA has twice used Petitions to call for a Homeowner’s Meeting to Remove Board Members. While CCIOA requires a quorum of 20%, we use the loophole granted in CCIOA to give ourselves a lower threshold of 10% – which is only 9 households. This has the effect of forcing the Board to schedule a meeting (within 30 days of the Petition’s delivery), or the Petitioners get to use the Association resources to schedule and host a meeting controlled entirely by those Petitioners.
This power is reasonably considered to be one that can apply to any issue or agenda that homeowners wish to vote upon – not just removal of Board members. In Nevada, there’s not even a quorum requirement. If any homeowner puts a grievance in writing, it must be added to the next regularly scheduled Board meeting.
“NRS 116.31087 Right of units’ owners to have certain complaints placed on agenda of meeting of executive board.
1. If an executive board receives a written complaint from a unit’s owner alleging that the executive board has violated any provision of this chapter or any provision of the governing documents of the association, the executive board shall, upon the written request of the unit’s owner, place the subject of the complaint on the agenda of the next regularly scheduled meeting of the executive board.
2. Not later than 10 business days after the date that the association receives such a complaint, the executive board or an authorized representative of the association shall acknowledge the receipt of the complaint and notify the unit’s owner that, if the unit’s owner submits a written request that the subject of the complaint be placed on the agenda of the next regularly scheduled meeting of the executive board, the subject of the complaint will be placed on the agenda of the next regularly scheduled meeting of the executive board.“
This defeats the practices and strategies of several POHOA Boards to either eliminate or block the right to bring up agenda items, or run out the clock. So much of our time and energy has been wasted avoiding with topics that are quite legitimate for consideration for vote by all homeowners, if not the board itself. It is time we adapt and evolve vs. clinging to “board rights” to control meeting agendas in an absolute and authoritarian manner. Those rights really don’t exist, but many Board members pretend that they do, and they are not to be questioned. It’s not right.
If we don’t want to go as far as Nevada and give this right to individual homeowners, we should at least consider the Petition route. If 9 POHOA homeowners sign a petition to put something on the agenda for a vote, that should be no different than asking for a vote to remove a board member. This would stop those in POHOA who seek “control” of the Board of Directors as a means of absolute control of the agenda, and be a reasonable check and balance on such powers.
2023 AGENDA
Poudre Overlook has several things that should be on the agenda for the 2022 Annual Meeting, which then sets the agenda for 2023:
- Address Landscaping issues Along Overland
- More timely backlot mowing and weed mitigation
- Improve Snow Removal on Sidewalks and Streets (including contract for same price to clear all sidewalks)
- Improve Meeting Notice and Agenda practices
- Improve Transparency
- Revise and Update Policies (not full/expensive “document revision”) to comply with statutes and be more in line with homeowner practices and expectations
- Reduce legal expenses, explain $21k to VF-Law
- Get answers on fence replacement (for which we collected special assessments) on South End
It doesn’t have to be this hard. When we have some members that instinctively seek “technical compliance” (which was recently barred by C&C Inv. v. Hummel) saying “CCIOA doesn’t REQUIRE us to ____________”, but then insist when the same statutes are silent that there’s only one way of doing things (their way), we have a problem. And, it’s gone on for way too many years.
This is the perfect time to use the Open Forum and the powers of Petition to take control back from fighting factions at the East and West ends of our HOA. If we cannot find a way to be more inclusive, then this HOA should consider dissolving as perpetual conflict is our future. This is no way to live.
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