Colorado Homeowner Associations: Understanding The Governing Documents (Part 2 of 4)

Note: This article is part of a series. Click here to read the entire series.

Most if not all Colorado residential developments have a homeowner association and recorded documents establishing the rules for and obligations of the homeowners. Understanding those documents help homeowners avoid fines, lawsuits and unhappy neighbors. Yet, most homeowners have never read the governing documents.

Last month, we discussed the core document for any Colorado homeowner association — the declaration. This month we are going to discuss the role of the articles of incorporation and bylaws.

The declaration is a recorded document. It is recorded with the Colorado county clerk and recorder. By recording the declaration with the Colorado county clerk and recorder, all persons who take title to the land take title subject to the declaration whether they read the declaration or not. The act of recording is deemed to give notice to the world of the restrictions and obligations.

The articles of incorporation and bylaws may or may not be recorded with the county clerk and recorder. Often, they are recorded. Just like we discussed last month in the context of the declaration, if the articles of incorporation and bylaws are recorded, always work from the recorded document. The number of homeowner associations and people who do not work from the recorded articles and bylaws is substantial. Almost without fail, when we initially ask for the articles of incorporation and bylaws, we get something that has not been recorded or not even executed by an officer of the association. Sometimes, the bylaws have not even been properly approved.

The above said, just because the articles and bylaws are recorded, that does not mean they are the current articles and bylaws. Both the articles of incorporation and bylaws can be amended. Be sure that there are no amendments that occurred after the original articles and bylaws were recorded.

Just like with the declaration, it is important to read the articles of incorporation and bylaws. These days, the articles of incorporation tend to be quite short. The details are in the bylaws.

Always keep in mind which documents have priority. The declaration and Colorado law have priority over anything in the articles of incorporation or bylaws. A restriction on the use of the land written into the bylaws must have its source in Colorado law or the declaration. Otherwise, it is an invalid restriction.

If the Colorado common interest community came into existence on or after July 1, 1992, the bylaws of the homeowner association must contain certain provisions. Those provisions are too lengthy to include in this article, but can be found in Colorado Revised Statute 38-33.3-306. Even if the Colorado common interest community existed prior to July 1, 1992, the common interest community can be subject to these requirements.

People tend to discover problems with the bylaws only after a dispute or issue arises. The homeowner and the homeowner association should make sure that the bylaws are properly adopted and that the content complies with Colorado law before a problem arises.