What to Expect From a Violation Hearing
Under the Colorado Common Interest Ownership Act (“CCIOA”), before an association can levy fines against an owner, the association must provide the owner with the opportunity for “a fair and impartial fact-finding process concerning whether the alleged violation actually occurred and whether the unit owner is the one who should be held responsible for the violation.”
But what does that mean in practice? There are three requirements for violation hearings:
- the hearing must be before an “impartial decision maker;”
- the owner has the right to be heard; and
- the hearing must be conducted in executive session (unless otherwise requested by the owner).
Impartial Decision Maker
Violation hearings are typically conducted by the board of directors. The board may appoint a separate hearing committee, as long as records are kept of the hearing. Regardless if the hearing is conducted by the board or a separate hearing committee, the hearing panel must be comprised of “impartial decision makers.”
An impartial decision-maker is defined by CCIOA as any person(s) without a direct personal or financial interest in the outcome. However, depending on the nature of the violation, it’s recommended that decision makers also not include immediately adjacent/adjoining property owners or the person who initially filed the complaint, as it can have the appearance of unfairness.
Opportunity to Be Heard During the Violation Hearing
Hearings are typically conducted informally. The owner should be informed about the nature and circumstances of the alleged violation. They should be provided copies of any photos or other evidence. The owner should be given an opportunity to explain themselves or give their version of events. The board may invite others to speak and present additional information about the alleged violation (e.g., neighbors or residents who witnessed or observed the violation).
Associations should not permit hearings to become adversarial or turn into a “mini-trial.” The parties have a chance to speak and present information to the board or hearing committee. The parties should not be permitted to argue or cross-examine one another. After the parties have each been given a reasonable opportunity to speak, further discussion may be appropriate if the parties are courteous and respectful of each other; otherwise, the Association may limit any additional dialogue. At any time, if a participant become belligerent, the board can take the individual’s statement and discuss the violation amongst themselves after the person has been dismissed.
Executive Session
What does it mean to hold violation hearings during Executive Session?
Executive sessions are closed meetings. Unless otherwise requested by the alleged violator, a violation hearing must be conducted in executive session. The only persons present for the hearing should be:
- the alleged violator and their representative (if any)
- the hearing panel (usually the board of directors)
- the manager, legal counsel (if requested)
- the complainant
- any witnesses requested to attend the hearing
Other owners and residents should be excluded from the hearing. The board should maintain a record of the hearing, but those records are not subject to disclosure to other owners or members of the association.
There is no requirement that decisions must be made immediately, although it is best practice to not let the matter linger. Once a determination is made, the association should issue its decision and reasoning in writing to the owner. Explaining the basis for the decision helps to mitigate the risk that an owner will challenge the decision and may help guide future decision-making.
