Chapter 8 - § 8.4 • ASSOCIATION DISCRETION TO GRANT PERMISSION FOR UNIT OWNER ACTIVITIES

• Jurisdiction: Colorado

§ 8.4 • ASSOCIATION DISCRETION TO GRANT PERMISSION FOR UNIT OWNER ACTIVITIES

Association documents often require unit owners to obtain permission from the association before engaging in certain activities: making exterior changes, bringing pets into a unit, installing hardsurface flooring, or leasing a unit. The CCIOA requires the unit owners to submit an application to the governing board to relocate boundaries between adjoining units¹¹² or to subdivide a unit.¹¹³ In neither case does the CCIOA prescribe the extent, if any, of the board's discretion, but in both cases the applicable statute lists information that the applicant must provide to the board,¹¹⁴ and adds that the application must include "such other information as may be reasonably requested by the . . . board."¹¹⁵ Thus, the Act contemplates that the board may exercise at least some measure of discretion. When documents require that unit owners make application to the board, they sometimes place no parameters on the board's discretion. However, the documents usually identify standards that must be met, even if they do not specifically prescribe the limits on the board's discretion. For example, the documents may restrict pets by size or weight or set out sound insulation standards for hardsurface flooring in addition to requiring that a unit owner submit an application to the board for a pet or hardsurface flooring. In those cases, the board's primary responsibility is to determine that the specific document guidelines have been met. Beyond that, what is the extent of the board's discretion? Colorado law establishes at least two limitations on that discretion. First, any discretion delegated must actually be exercised instead of enforcing "unwritten" rules.¹¹⁶ Second, in the specific case of applications to approve or deny an application for architectural or landscaping changes, decisions must be made in accordance with standards and procedures set forth in the declaration or in duly adopted rules and regulations or bylaws and may not be made arbitrarily or capriciously.¹¹⁷ Finally, courts in other jurisdictions have said that, in general, discretion must be applied reasonably or in good faith¹¹⁸ or that uses must be allowed that are not "demonstrably antagonistic to the legitimate objectives of the association, i.e., the health, happiness and peace of mind of the individual unit owners."¹¹⁹

Practice Pointer
The concept of expressed or implied limits to discretion is basic to lawyers. It is, in essence, what law is about. However, the idea may elude laypersons. They also may not perceive that a decision that even appears to be arbitrary can result in costly litigation. Thus, they

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