1449082797.jpgDenver joins a growing number of Colorado cities (10 total) approving an ordinance regarding construction claims in common interest communities. Denver’s ordinance adopts several provisions popular among Colorado cities including: (1) HOA’s must provide notice to and obtain a majority consent of homeowners before filing lawsuits; and (2) amendments to ADR provisions in declarations are deemed ineffective and void against public policy absent consent of the declarant. However, Denver’s ordinance has additional teeth. For example, section 10-202 provides a violation of any building code or a failure to substantially comply with any code, in and of itself, SHALL NOT create a private cause of action regardless of the statutory or common law theory asserted UNLESS the violation of failure to substantially comply results in one or more of the following: (1) actual damages to property; (2) actual loss of use of property; (3) bodily injury or wrongful death; or (4) a risk of bodily injury or death of the occupants of residential property. The ordinance bars strict liability claims for code violations or common law claims for “negligence per se.” Plus, any code compliant improvements shall not be considered defective.

On November 24, 2015, Colorado Springs, after its first reading, unanimously adopted its ordinance. It appears Colorado Springs’ ordinance has the support necessary to obtain final approval. Once passed, the three largest Colorado cities will have approved their construction defect reform ordinances sending a strong message to the legislature which reconvenes January 13, 2016. While Colorado Springs’ proposed ordinance does not include provisions limiting amendments to ADR requirements, it tracks most other cities, including Denver’s building code component. Colorado Springs’ ordinance, like many other cities, seeks to encourage construction of owner-occupied, multi-family, townhome and condominium common interest communities. The ordinance also promotes prompt and voluntary correction of construction defect claims in order to enhance health and safety of construction in Colorado. Colorado Springs’ final vote is December 8, 2015, and is expected to pass.