By Deborah Goonan, Independent American Communities
UPDATE: SB 16-082 killed in committee. There will be no whistle blower protection in Colorado.
HOA Whilstleblower Protection Bill Killed in Senate Committee
Will the days of HOA bullying finally be over?
Perhaps in Colorado, if a new bill proposal becomes the law in the state. SB 16-082, introduced by Senator Carroll and Representative Ryden, prohibits retaliation against homeowners by their HOA or one of its agents or fellow owners, for reporting or participating in the investigation of a reported violation of the Colorado Common Interest Ownership Act (CCIOA).
Although on the face of it, this looks like a very consumer-friendly bill, there is one major omission. The bill, as written, does not entitle the tenant of a common interest association to similar protection from abuse and retaliation.
Given that, in some communities, tenant residency can exceed 30%, that’s a major loophole. Therefore, if passed as proposed, SB 16-082 will do nothing to prevent irresponsible landlord-owners and association management companies from retaliating against tenants who complain that the association has failed to provide adequate maintenance and repair services.
Here is the applicable section of CCIOA that would affect tenants and other non-owner residents:
38-33.3-307 Upkeep of the common interest community
(1) Except to the extent provided by the declaration, subsection (2) of this section, or section 38-33.3-313 (9), the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of such owner’s unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through such owner’s unit reasonably necessary for those purposes. If damage is inflicted, or a strong likelihood exists that it will be inflicted, on the common elements or any unit through which access is taken, the unit owner responsible for the damage, or expense to avoid damage, or the association if it is responsible, is liable for the cost of prompt repair.
(1.5) Maintenance, repair or replacement of any drainage structure or facilities, or other public improvements required by the local governmental entity as a condition of development of the common interest community or any part thereof shall be the responsibility of the association, unless such improvements have been dedicated to and accepted by the local governmental entity for the purpose of maintenance, repair, or replacement or unless such maintenance, repair, or replacement has been authorized by law to be performed by a special district or other municipal or quasi-municipal entity.
So if the landlord-owner fails to repair leaky plumbing or a broken appliance, where can a tenant turn for assistance? If the association and/or its management company allows the parking lot to flood every time it rains, or never maintains the laundry area, or fails to remove snow and ice from walkways or stairs in the winter, where can a tenant turn? The tenant would have to convince one of the owners to file a complaint on his or her behalf.