We often get questions about how important it is that a particular notice goes out as required by the Bylaws or the Declaration or a particular policy. Typically, a manager or a board member will call and explain that they’ve been sending out notices a certain way for a number of years (nobody can really remember why, or for how long because the practice pre-dates current management and all of the current board members), but a homeowner just contacted the manager or the board member and said that the notice didn’t comply with the governing documents. How important is that?
Typically the governing documents will contain any number of time frames, or notice requirements. Even if they don’t, many Colorado statutes governing community associations contain minimum notice requirements or time frames. For example, there are certain requirements for sending out notices of meetings – they must be sent out a certain minimum amount of time before the meeting, but also, not more than a certain amount of time before the meeting. Or, the documents specify that a certain amount of notice must be sent to the member if there is an alleged violation of the documents before any type of sanction can be imposed (such as a fine or a suspension of voting rights). Or, in Colorado, certain minimum notices must be sent to delinquent owners before any action can be taken to collect the delinquent assessments.
In some cases, defective notices can be cured by owners waiving the defect. However, that can be virtually impossible to do when there are more than a few affected owners. In addition, if the notice was supposed to be a right to cure a violation, and proper notice was not given, it is unlikely that the owner will waive the defect.
Courts often speak in terms of “due process” which is a somewhat vague concept describing a concept of fairness. Did the notice given by the association meet the requirements of due process (or fairness)? If you can answer “yes” because you complied with the minimum notice requirements of either your governing documents or the governing statutes, you will have a much greater likelihood of surviving a challenge to the board’s actions.