All Colorado community associations are required by the Colorado Common Interest Ownership Act (“CCIOA”) to adopt responsible governance policies governing issues like collections, meeting procedure, and records inspection. CCIOA does not provide a lot of guidance for the terms of these policies, but the policy regarding enforcement of covenants and rules and the imposition of fines, must provide the following:
- Notice and hearing procedures;
- A schedule of fines;
- A fair and impartial fact-finding process; and
- An impartial decisionmaker.
These minimal guidelines do not address a question we frequently see from our clients: “Do I have to tell my neighbor I ratted him out?”
Many homeowners prefer the option of anonymity when making a covenant violation complaint. The reasons for the preference are obvious – it allows the complainant some measure of protection from an irate neighbor, and can encourage free and open violation reports.
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We don’t recommend associations allow anonymous reporting for a variety of reasons. First, Colorado has made it clear that its policy with respect to community associations is to encourage transparency. Anonymous complaints are the very opposite of transparent. While a community association is not subject to the Confrontation Clause of the Sixth Amendment, it makes sense for a community that is providing due process in a manner analogous to the Bill of Rights to allow an owner to confront his or her “accuser.”
In addition, we, as the attorneys, don’t always know the politics of the community. We only know what is presented to us, which can be skewed by a board member or homeowner with a grudge. It harms a community to allow enforcement that may not be based solely on the requirements of the governing documents.
Anonymity also may disinhibit people, allowing them to make statements and comments they would not make if they had to reveal their identities. Every person who has spent time on YouTube is familiar with this disinhibition, and no one wants their community to drop to the level of the average YouTube commenter.
Finally, it’s simply a fact of law that if we have to take a violation to court, we need the person who personally observed the violation (or violations) to appear to testify about what he or she saw. The association’s manager isn’t the proper party to testify about a violation, unless the manager is the person who saw the violation.
Take a look at your governing documents to determine whether they provide guidance for covenant violation complaints. If they do not, consider adopting a policy that requires identification of the complainant to ensure your community functions in a fair and open manner.