HOA and Condo Board Construction Defect Claims in Colorado

When unit owners across a condominium or townhome community start reporting the same water stains, cracked stucco, or foundation movement, an HOA board’s question is no longer whether something is wrong. It is what the board is authorized to do about it. Pursuing a claim on behalf of an association is different from an individual homeowner pursuing a claim on a single unit: the board must establish standing over the common elements involved, satisfy disclosure requirements to every unit owner, and secure the ownership vote Colorado law now requires before filing. Boards that bring in an HOA construction defect attorney Colorado communities trust early in that process protect both the claim and the members who authorized it.

At Elkus & Sisson, P.C., our Colorado construction defect attorneys advise HOA boards and condo associations on construction defect claims from the first sign of a common element problem through litigation or arbitration. We evaluate standing and common element boundaries, guide boards through the ownership vote and disclosure process Colorado law requires, and pursue available remedies against the builders, developers, and contractors responsible for the defect.

Who Can Bring a Claim: HOA Standing Over Common Elements

Common elements are the parts of a condominium or townhome community that the association, rather than any individual owner, is responsible for maintaining. Roofs, exterior walls and siding, building foundations, shared mechanical systems, hallways, and structural framing typically fall into this category. Under the Colorado Common Interest Ownership Act (CCIOA), C.R.S. § 38-33.3-101 et seq., an association has the authority to act on behalf of its unit owners with respect to the common elements it is obligated to maintain, repair, or replace, including pursuing a construction defect claim when those elements are affected.^[1]

That authority is what separates an HOA’s common elements construction defect claim from an individual homeowner’s case. A single roof or building envelope defect can affect dozens of units at once, and Colorado law generally allows the association to bring one coordinated claim on behalf of the community rather than requiring each affected owner to pursue a separate case. Defects confined entirely to the interior of one unit, by contrast, are usually that owner’s claim to bring, not the association’s.

The Ownership Vote Now Required Before an HOA Can Sue

Before an HOA board can file a construction defect lawsuit against a builder, developer, or contractor, Colorado law requires the association to clear a procedural hurdle that did not exist before 2025. Under amendments to the CCIOA made by the Colorado American Dream Act, House Bill 25-1272, the board must secure approval from owners holding at least 65 percent of the voting interests in the association before initiating a construction defect action, a threshold raised from the simple majority that applied under prior law.^[2]

The board must also satisfy disclosure obligations under C.R.S. § 38-33.3-303.5 before that vote takes place, including notifying unit owners of the proposed claim and maintaining a verified mailing list confirming that notice went out.^[3] Two narrow exceptions apply: the higher vote threshold does not extend to claims involving nonresidential facilities where the repair cost is under $50,000, or to construction the association itself contracted for directly. Outside those exceptions, skipping or rushing the vote can expose the board’s authorization to challenge later in the case.

The 2025 reforms add one more condition that affects how boards plan a claim financially: any settlement or judgment recovered must be applied first to repairing the defects at issue before the association can use the funds for any other purpose. Boards evaluating whether to pursue a claim need to weigh the vote requirement, the disclosure timeline, and this use of proceeds rule together, not as separate steps.

Reserves, Funding, and the Board’s Financial Decisions

Reserve funds often become part of the conversation long before an HOA board takes a construction defect claim to a vote. Under the CCIOA, associations are required to adopt a written reserve policy addressing when a reserve study will be prepared and whether a funding plan exists for the work it recommends.^[7] That policy, and any reserve study the association has on file, can become relevant evidence of when a board knew or should have known about a defect affecting a component the study covers.

Boards frequently use reserve funds to pay for the initial expert inspection and documentation needed to evaluate whether a viable claim exists, since that work typically has to happen before the ownership vote or the CDARA Notice of Claim can move forward. Underfunded reserves do not prevent a board from pursuing a claim, but they can limit how quickly a board can act on an inspection finding without turning to a special assessment. Because any recovery must go first toward repairs, boards should also plan for how reserve funds and claim proceeds will work together to actually complete the repair once a case resolves.

Reserve funds and claim proceeds are not the only variable that can affect how quickly repairs actually get funded. Disputes with a builder’s or the association’s own carrier can stall repair funding well after a settlement or judgment is reached, and we walk through what remedies apply when a carrier delays or denies a claim on a separate page.

Coordinating Among Unit Owners and the Board’s Authority

Getting a construction defect claim authorized is a governance exercise as much as a legal one. The board typically needs to call a meeting or vote, provide the disclosures Colorado law requires, tally approval from owners holding the required percentage of voting interests, and keep minutes documenting each step. Governing documents can add requirements on top of what state law requires, so reviewing the association’s declaration and bylaws early avoids surprises later in the process.

Coordination becomes more complex in larger communities and in associations with mixed building types, where a defect may affect some buildings and not others. Boards in that position often need to define which owners are affected by the specific common element at issue, since disclosure and voting obligations generally run to the ownership group tied to the claim rather than the entire association. An HOA board also has a fiduciary duty to evaluate a meritorious claim on behalf of its members, which means delaying a vote indefinitely while the board deliberates internally is its own kind of risk.

Documentation the Board Needs Before Filing a Claim

Preparing to bring a claim starts well before the Notice of Claim goes out. Boards benefit from assembling maintenance records, prior complaint or work order logs from affected owners, photographs and video of the visible damage, any existing reserve study covering the components at issue, and the minutes and disclosure records from the ownership vote. This documentation supports both the Notice of Claim itself and the board’s ability to show it satisfied its procedural obligations if that authorization is ever challenged.

An independent expert inspection is typically part of this stage as well, since CDARA’s Notice of Claim must describe the nature and location of each alleged defect, when it was discovered, and which construction professionals are believed to be responsible. Do not authorize permanent repairs to a common element under investigation before an expert has documented the condition and the construction professional has had its inspection opportunity under CDARA. Making repairs too early can create spoliation of evidence problems that weaken an otherwise strong claim. For a checklist covering what a compliant Notice of Claim must include, see our Colorado Notice of Claim checklist.

The CDARA Process for HOA Claims

Once the board has authorization to proceed, an HOA’s claim follows the same pre-litigation framework that applies to any Colorado construction defect case under the Construction Defect Action Reform Act (CDARA), C.R.S. § 13-20-801 et seq.^[4] The association serves a written Notice of Claim on each construction professional it intends to name, generally at least 75 days before filing suit for residential common interest communities, followed by an inspection window and a repair or settlement offer window before litigation or arbitration becomes available.^[5] Our Colorado CDARA guide walks through each stage of that process in detail, including the residential and commercial timelines and what happens if the pre-suit process fails to resolve the dispute.

What changes for an HOA is not the CDARA timeline itself, but everything that has to happen before the Notice of Claim can be served: establishing standing over the common elements, completing the ownership vote and disclosures, and documenting the board’s authorization. Missing a step in that sequence does not extend the CDARA deadlines, so boards need to build board authorization time into the overall claim timeline rather than treating it as a formality that happens after the real work begins.

Deadlines HOA Boards Cannot Afford to Miss

Colorado’s underlying statute of limitations and repose apply to HOA construction defect claims the same way they apply to individual homeowner claims. Colorado law generally provides a two-year statute of limitations from the date the defect was discovered or should have been discovered, and a six-year statute of repose measured from substantial completion of the construction, under C.R.S. § 13-80-104.^[6] If a defect is discovered in the fifth or sixth year after completion, a two-year extension may be available, bringing the outer limit to eight years from substantial completion.

These deadlines create a specific risk for HOA boards that individual homeowners do not face in the same way: the ownership vote and disclosure process take time, and that time comes out of the same clock. A board that waits until a repair estimate is finalized, or until the next annual meeting, to begin the disclosure and vote process can find that the statute of limitations has run before the Notice of Claim is ever served. Starting the internal authorization process as soon as a potential common element defect is identified, rather than after the board is certain a claim is warranted, is the only way to protect the association’s options.

Evaluating the Board’s Path Forward on a Common Element Claim

Understanding who can bring a claim under Colorado law is the first step. Knowing how the ownership vote, the reserve funds, and the filing deadlines fit together is what actually shapes the board’s next move.

• The 65 percent vote is now the central strategic question. Boards that once needed only a simple majority face a materially higher bar. Testing whether the community can reach 65 percent early, before committing to an expert inspection or a Notice of Claim, avoids spending board time on a path owners may not approve.
• Reserve funding shapes the timeline more than most boards expect. A well-documented reserve study can support the disclosure the board owes unit owners and help justify the vote. An underfunded reserve does not block a claim, but it often means a special assessment conversation has to run alongside the legal one.
• Documentation protects the board’s authority as much as the case. Meeting minutes, the verified owner mailing list, and the disclosure notice matter as much to defending the board’s decision to sue as the inspection report matters to proving the defect. Gaps in either record can be challenged well after the vote.
• The deadline clock does not pause for governance. Statute of limitations and repose deadlines keep running whether or not the board has finished its internal process. Treating the ownership vote as a formality for later, rather than a task to start now, is the most common way a viable claim gets lost.

For Colorado HOA boards, whether a defect is actionable is rarely the hard question. The harder question is managing the vote, the reserves, and the calendar before that question reaches a courtroom.

Talk to a Colorado Construction Defect Attorney

Construction defect claims brought by an HOA involve governance requirements, ownership votes, and deadlines that individual homeowner claims do not, and disputes with builders and developers who are well represented from day one. Elkus & Sisson, P.C. represents HOA boards, condo associations, and homeowners at our Colorado office locations in construction defect matters including common element claims, CDARA notice of claim compliance, and board governance questions.

If you have questions about your association’s construction defect claim, contact us or call +1 303-567-7981 to schedule a free consultation.