[This is a guest blog post from Chuck Fowler, who has helped create and manage several of Colorado Springs’ most prestigious covenant-protected communities, such as Flying Horse, Pine Creek, Cedar Heights, and Parkside at Mountain Shadows.
We’ve found, over the years, that when our clients are in the process of looking for land to build on, sometimes we hear questions about buying a lot in a covenant-controlled community or a neighborhood with a Homeowner’s Association. To answer some of those questions, we asked Chuck to share some insight on how HOAs and Covenants work, how they can be beneficial for a home owner, and whether buying into a community with an HOA is right for you. We hope you find his answers helpful.]
Q: First things first: what is a Home Owners Association, exactly, and how is it structured?
A: Homeowner’s Associations (“HOAs”) are, essentially, a “private” government—an organization that has the legal authority to tax. In the HOA world, we call this tax either “dues” or an “assessment” (“dues” is the term used most commonly, but “assessment” is actually the correct term). Just like a public government where people in a community elect representatives to govern themselves, HOAs do the same thing: instead of a City Council, they elect a Board of Directors. Similar to a public government, that board then collects “taxes” and saves the money in a public fund to be allocated for the common good of the citizens.
The purpose of the private government is to manage the common interest of the property owners who live within the boundaries of that community. (Note: one big difference between an HOA and a true government is that an HOA is usually run by unpaid volunteers.)
Structurally, the HOA itself is an organization that is incorporated under the state rules of a nonprofit, and, in Colorado, they’re also subject to CCIOA (the “Colorado Common Interest Ownership Act,” pronounced “Kiowa“), which are the parts of the state law that regulates Homeowner’s Associations.
Q: How does an HOA get the authority to enforce its restrictions and charge an assessment? Does it own part of my property?
A: When the community is first created and the land is developed, a “declaration of covenants and restrictions” is recorded. If it’s been written properly, that declaration creates an “Assessment Lien” with a covenant condition contained within it, which is important because that is what gives it the legal authority to tax.
If you purchase a home or land in this kind of community and take title to it, you’re obligated to pay the assessment. It creates a continuous lien on your property. This lien gives the HOA the authority to charge the assessment, and, to foreclose at some point, on that lien on your property if you don’t pay what is due.
Even if you don’t have an HOA, I think it’s good to know that there is NO such thing as truly private property. That’s a big misconception. There is no property that exists that is completely unencumbered. With all private property, somebody, somewhere, has a claim to something on your land, in some way. Whether it’s a taxing authority, like a City or County, or a Water District, or an HOA, or Easements, or Utilities. There is no truly “free and clear” title: somebody out there has some kind of claim to your property, whether that’s an HOA or not.
Q: Something commonly discussed in home building is an Architectural Control Committee. Can you explain what that is?
A: An Architectural Control Committee (ACC) is a standing committee within the HOA, of people appointed by the HOA Board, who sit in judgment of modifications that owners want to make to their homes. The ACC serves at the pleasure of the HOA board. Typically, an ACC has three or more people, and their review criteria are based on requirements in the covenants, which include things like: uniformity of look, colors, building materials, etc.
The best HOAs have design guidelines that they’ve developed, and those design guidelines cover everything that the ACC has authority over, and typically (99% of the time) this pertains to matters specific only to the exterior of the home. ACC restrictions almost never affect the inside of the home, with the exception of window coverings.
Q: Here’s another acronym for you: CC&Rs. What are CC&Rs?
A: “CC&Rs” stands for “Covenants, Conditions & Restrictions,” and these are established in the constitution by the government in addition to the articles of incorporation.
The Covenants are the parts of the constitution that set up the organization in the first place. They define its purpose, its scope of authority, its obligations as an organization, what the obligations of the owners/members are, and each party’s obligations regarding insurance and who’s responsible for what, etc. So there’s a bound set of documents called “the covenants,” and within the covenants, we find the conditions and restrictions.
The Conditions, these state that you agree to abide by the covenants, and will say something like “I agree to take title to my property under the obligations and authorities laid out in the constitution.”
The Restrictions are just that: restrictions on what you can and can’t do with your property. An example would be something like roofing: a community may have restrictions on what roofing materials your home can have. These restrictions are mandatory, and if you take title to a property within this private government, you are agreeing to live by these restrictions. They’re mandatory.
Q: What are some reasons a home owner might want to live in a community with an HOA, versus one that has no HOA?
A: It all comes down to what kind of person you are, and how you feel about your property. Are you a real gung-ho property-rights kind of person, where nobody can tell you what to do with your own property? Or are you more of a live-and-let-live-type person who really doesn’t care much? It’s all about what you’re most comfortable with.
There’s a risk factor to your property’s value when your home is in a neighborhood without an HOA. In contrast, I would say the odds favor the house that’s in a neighborhood with an HOA as far as maintaining or increasing the property’s value. And if you want proof of that, just look at any covenant-controlled community of single-family homes in Colorado Springs, and then go drive through the Holland Park neighborhood. And I’m not disparaging Holland Park; I’m just pointing out that if it is a covenant-controlled community, the covenants are certainly not being enforced, but I really don’t think it is a covenant-controlled community.
If you don’t want to live in a neighborhood where it’s up to each individual owner what color he can paint his house, and whether he’s going to park his RV and boat out front, and has carte blanche to do whatever he wants on his property, a covenant-controlled neighborhood might be for you. I’m not saying a neighborhood without covenants is bad—I’m simply saying that people who share those values should live together in the same communities. If you are that property-rights kind of guy yourself, that’s probably where you should live.
The risk factor for living in an area with an HOA is if you do have an RV and a boat, and you want to paint your house pink, but there are restrictions on what you can do with your property. Some people may think it’s too much for them to handle.
Ultimately the question is: what are you willing to give up in order to gain something else? There are two different kinds of people: again, one isn’t better than the other, it’s just that you need to be in a community with like-minded people.
Q: How can I know what to expect from an HOA before I buy my house or lot?
A: When you make an offer on the house (or lot), and if you’re under contract using the Colorado State-approved “Contract to Buy and Sell Real Estate,” in Section 7, there’s a pre-printed area called “CIC” — the “Common Interest Community” section. Here, by contract, the seller is obligated to provide documents that will give the buyer a look into the condition of the HOA. Technically, this is how you would find out what to expect.
However, you as a buyer need to actually read those documents, and even if you read them, sometimes being able to understand them is a different story. If you have no experience with an HOA, it’s not going to mean much to you what they’re talking about.
I remember when I first considered moving to Parkside, and I first read the declaration for the neighborhood. I had never read a set of covenants before and I thought “Wow, I don’t want to do this! I’m giving up a lot of power to this organization and I’m not sure I’m comfortable with that.” But eventually, after I talked to some other people, I became comfortable with it. But I think most people don’t really have a clue about covenants, and most Realtors don’t understand them either, and they don’t want to put themselves in a position where their client will either buy or not buy based on what they’re telling them about the HOA.
Because it can be quite hard to understand exactly how this all works, I’ve actually created a business creating “HOA Reports,” where I give a buyer a written report on the HOA. I do several things for my clients when I create these:
- I get a copy of the sales contract.
- I usually go look at the property itself.
- I go interview the President of the HOA Board.
- If the HOA is using a management company, sometimes I’ll go interview the manager as well.
I then take all this information and condense it into a report that shows not just the facts like “there is an HOA, and here’s what the restrictions are,” but also my thoughts on the state of the HOA. For examples: it may be that they have good documentation, but they run over budget every year, or their documentation is inaccurate, etc. (If you’re interested in an HOA Report, contact me for more information and I’ll be happy to explain more).
Q: In addition to having restrictions, most HOAs provide services. What are some typical services an HOA would provide?
A: In Colorado Springs, there is no city or county-provided trash pickup, so most HOAs work something out with one of the trash companies here in town to have trash collection on just one day of the week so you don’t have all the wear and tear on the streets with multiple trash service providers coming in with their trucks each day, plus all the commotion and noise that causes. So trash collection is probably the biggest service most HOAs provide.
Following that, it’s all about the common area that the declaration requires the HOA to maintain, if you have a common area (fencing around the perimeter, sidewalks, tennis courts, parks, etc) landscape services are pretty common.
Q: Aside from rules about real estate, do HOAs have other kinds of restrictions to be aware of?
A: It’s important to remember that all HOAs are different, because their members’ needs are different. Having said that, most of them do have some sort of “Pet Restriction,” where you can only have two domesticated pets (either a cat or a dog, or two cats, or two dogs, etc).
A lot of them also have rules about parking. There can be restrictions on parking on the street overnight, or they may get finicky about you parking your pickup truck in the driveway instead of in the garage, or forgetting to keep the garage doors closed when not in use. They want to ensure that people are using their garages for their cars, and not turning them into a wood shop (which can cause issues for parking and also create a nuisance with the noise).
Q: How are my HOA dues calculated, and what do they go towards?
A: The answer to that is ultimately derived from the HOA’s budget, which is recalculated every year. The budget is determined by things like the cost of services (trash, landscaping, etc), maintenance and insurance for the common areas (above-ground sprinkler clocks, pools, tennis courts, parks with playgrounds, basketball courts, fitness centers, etc) and more.
One of the major differences between a municipal government (such as a city) and the HOA’s private government model is that unlike a city, an HOA can’t borrow money to pay for these things. While a city can just sell bonds to raise funds for a project, an HOA has to raise funds by charging the assessment and saving it. If there’s not enough money in the budget, nothing happens. So a portion of your monthly payment goes into a “replacement reserve,” which is a savings account where money is set aside for replacing those things that wear out. If the HOA wants to start adding services or common area, there will need to be an increase in the assessment to pay for it, and that’s considered on an annual basis as well.
Q: What are some common myths or misunderstandings about HOAs?
A: There are two major misconceptions I think people have about HOAs:
- That all HOAs are the same. People will think: “Well, my friends down the street are only paying $50/month for their HOA dues, so why do we need to pay $150/month?” …well, that’s probably because you have a pool and a tennis court and your friends don’t, so your HOA has more expenses, which is why your dues are higher.
- That HOA boards are run by bad people who are power-hungry. Most people eye their HOA board very suspiciously and think that it must be run by evil people. That is, unless they’re actually involved in running it, and unless they know something about it. If people actually take the time to go to HOA meetings, and be a part of it—which I always encourage people to do, by the way—they’ll know what the facts are.
Q: What is the difference between a good and a bad HOA?
A: A good HOA understands its purpose, which is to do two things, essentially: 1) maintain property values of the people who’ve invested in that community, 2) figure out how to facilitate a community that people actually want to live in.
It’s one thing to provide the services that the HOA is obligated to do, i.e. to make it look like a beautiful community. That’s the easy part. But it’s another thing altogether to make sure that the community is, culturally, a place where people want to live.
It could be that you love your home, and you love where your neighborhood is located within the city, but living there is just awful, for whatever reason: barking dogs, pets running around loose all the time, neighbors who tinker with their cars and rev the engine really loud, etc. There’s a certain amount of respect required when you live in a community of people, and an HOA can really help facilitate that. But they’ve got to be careful about how they go about it. As I said, people are already suspicious of their HOA, so immediately, they’ve got an uphill climb to try to create a livable environment. A good HOA will enforce their covenants—that’s critical. But should they take a sledge-hammer approach? Are they mean or angry when they enforce them? Or are they willing to work with people? I always counsel the leaders of HOA along the lines of the golden rule and ask: “How do you want people to treat you?”
One of the big signs of a bad HOA is if you have trouble requesting their documentation. They’re required to keep meeting minutes and financial documents, so if you find an HOA that doesn’t have these things, or if they have them but won’t give them to you, you’ve got a problem. Or sometimes, if you ask for the declaration, which is typically 70 pages long, they might send you just the first three pages of it, and if you call them to ask why, they might say “Oh, sorry, our scanner isn’t working right,” and they’ll send a few more pages, but still not the entire document. These are signs of a bad HOA: they jerk you around, or play games with you.
So the biggest signs of a bad HOA are any of the following: they have no documents (when there should be); they have the documents you want but they don’t come easily; you get the documents, but they’re unintelligible; or they’re willing to give you the documents but insist on charging an exorbitant fee to do so. These are all red flags, so be careful. There are good HOAs out there—you just need to do a little bit of research to find them.
I hope you’ve found this information helpful in demystifying HOAs and Covenant-Controlled communities. I think they can be a great asset in protecting your investment, and they can really create a community you want to live in and be a part of. I wish you the best of luck in finding a neighborhood that’s right for you.
Can you enforce declaration of covenant if you don’t have a hoa formed
I know you posted this a long time ago. I am interested what you may have discovered on this.
I have an answer to this from Chuck also, and will try to post that next week as well.
Hey Jim, You pose an interesting question. Most Declaration of Covenants, Conditions and Restrictions (Covenants) include a provision whereby any property owner subject to the Covenants can enforce its provisions, as well as the Homeowners Association or Declarant. You can easily check your copy of the Covenants to see if this provision exists. If you choose to take such action, however, it’s always a good idea to engage an attorney to help you. Significant financial and legal risks exist that could cause you to spend a lot of money, time and frustration — and you may not prevail. If Covenants exist with no Homeowner’s Association, that would be a very unusual situation. HOA’s are formed by the Declarant (usually the developer/builder of the subdivision) to enforce the Covenants. Do you pay an assessment? Who do you pay it to? Call them to make sure you don’t have an Association. If you don’t pay an assessment, then go back to the Covenants and see who the document names as the Declarant. You can find this info in the first paragraph of the first page, or, on the signatory page (the last page). You can then learn more about the Declarant (including contact info for the Registered Agent) by searching the Secretary of State’s records at http://www.sos.state.co.us — click the Businesses, trademarks, trade names link and type the Declarant’s name into the search window.
Where can I check if my HOA has proper rights to prohibit me from owning a pit bull or to restrict certain colors of my patio umbrella? Is there a way to see if the HOA is limited to rules governing use of the common areas? If they are what actions can I take? They also restrict me from parking on my drive way which I think is absurd.
Hello Robert — My first question: why do you live in an HOA? No, really! If you don’t want this type of scrutiny or authority regulating the use of your property, perhaps you would be more content in a subdivision where there is no HOA — usually older or rural neighborhoods. Or neighborhoods with fewer than 20 units. Most if not all HOAs in Colorado have the legal authority to regulate the items that you list and that rub you the wrong way.
But the HOA Covenants, rules and regulations must be enforced according to Colorado law, Board policies, Architectural Control guidelines and procedures.
To verify that your HOA is acting within its authority, you need to get a copies from the management company or board (whomever manages your HOA) of the HOA’s Declaration of Covenants, Conditions and Restrictions, Board policies and rules and regulations. You should have received all these documents from the seller or builder before you purchased your home. These document define the HOA Board’s legal authority to regulate properties within an association. After you have read these documents, ask to speak at a Board meeting to voice your opinions, or at the annual meeting of the owners. If you don’t like the way your Board is enforcing its obligations (which really can’t be changed without a lot of time and expense), then get involved with the decision-making!! Maybe you can play a role in doing it better … good luck. cFowler
Hi chuck, My husband and I moved into our new build in February of this year. We were the ones handed the HOA because the President of the HOA moved and no one else would take over. We have 7 homes/lots in our community. One resident owns two tracs (5 acres each) He hasn’t built a home on either. We only pay $100.00 a year to HOA for road maintenance. The owner of the two pieces of land hasn’t paid anything since 1994. Can we put a lien on his property? What’s your advice?
Thanks, John and Lorie
What can you do when your HOA is inactive and by inactive I mean they haven’t done anything that they are supposed to do? We maintain our own lawns, there’s no lights on block and they have continue to do nothing. Is there anything I can do about that?
Hi Welch, are you paying HOA dues? If not, how long has the HOA been inactive?
Our loan servicer takes it out of our mortgage payments. We moved into our in April of this year and the HOA is non-existent and has been that way according to other residents.
Interesting. I’d say call your mortgage lender first and ask them where they’re sending it, then call that organization. Try getting a copy of the HOA’s Declaration of Covenants, Conditions and Restrictions. Then if you need specific help, call Chuck at (719) 499-3554 and maybe he can consult with you on what to do next.
I willingly joined an HOA upon purchase of my house in 1998. Now the HOA has changed the covenants in a draconian manner. Am I forever bound to this HOA no matter what they do? May I secede? Do I have no options?
Can an HOA subcontract their janitorial people to service another HOA?
Hi Paul, I’m not sure what you mean by “their people.” I’d imagine that most HOAs use subcontractors anyway (at least in Colorado, since a majority of them are very small). Based on that, I’d imagine there’s no problem with a subcontractor working for multiple HOAs.
I don’t think there’s ever a situation where you can “secede” from an HOA since by it’s very nature, the HOA usually has partial ownership of your property. However, an HOA can amend the covenants from time to time. The first step, I think, would be to check on the governing documents to see what their policies and procedures are for changing the covenants. Then, if you have a specific question, feel free to contact Chuck directly to see if he can help with your situation.
Hi, I was wondering if HOA common grounds are considered private grounds or public.
Hi Tonya, I’d guess HOAs would generally consider “common grounds” as “owned by the HOA members.” Is that what you’re asking? What’s interesting, though, is that sometimes the responsibility for upkeep is on the homeowner even if it is common ground. Chuck and I were discussing variations of this when we posted this article, and he gave me a good example: sometimes a homeowner might live along the outside border of the neighborhood which might have a fence and some grass on the other side. It can be, depending on what the documentation says, that while the homeowner doesn’t own the grass on the other side of the fence (since it’s commonly owned by the HOA members), he or she is legally responsible to maintain it since it borders his or her property. It’s pretty common that people don’t know this even when it is the case though. The bottom line is this: read your HOAs documentation to see what the rules are in your particular HOA, as each case is different. I hope that helps.
HI, I recently bought a home and the so called HOA/CC&R were said to be defunct. Two weeks after moving in I got a letter from an attorney about creating an HOA or our water will be cut off. At the present moment a bank owns the development. The CC&R was filed in the county, however there is nothing filed with the Secretary of State nor is there anything stating how much needs to be paid to whom and so on. I thought to have an HOA it had to be filed with the Secretary of State and you had to have a FEIN number with a bank acct, in HOA name etc. Makes sense. We have none of this. So how can a person say we have to pay them 100.00 month?
Hi KJ, that sounds like a very complicated situation. The only thing I recommend at this point is talking to an attorney yourself. Since you got a letter from an attorney and not an HOA board member, I’d treat this as a very sensitive legal matter.
I just purchased some land in an Estates and the previous owner had built a small building on it. The problem is today I was informed that in the bylaws it states that all Buildings must be at least 50 feet from the road and this building is 25 feet. So now they are claiming it is my responsibility to remove it, my question is this if they have allowed it to be here for over a year with the previous owner, than they have neglected their duties and are trying to strong arm me in something they should have forced him to do. I do not feel I should be forced to be out funds to do this. But maybe I am wrong so I am I wrong if so I will remove it?
Hi Eric, boy that’s a tough one. I’d imagine you could get some sort of “grandfather” exception, but I don’t know. It sounds like the property you now own is breaking the rules, but since the HOA didn’t enforce them, they’re also at fault. I think you’ll want to ask an attorney about whether they can force you to do anything about it, or, if the building needs to be demolished, to have them to pay for it.
We replaced our roof about a month ago. We filed an insurance claim and replaced our roof with the same color shingle as what was previously there. We didn’t think anything about and didn’t submit an approval to the HOA, as we thought, “hey, we are replacing a grey roof with a grey roof.” Well we got a letter from the HOA stating we have to replace our roof with the approved shingle color; either onyx or moire black. We are trying to reason with our HOA and say “what’s the harm of replacing a grey roof with a grey one?” They said the existing grey roof houses are fine but if you choose to replace the roof, it has to be a black color. We don’t have the financial means to spend that kind of money, AGAIN. We met with the HOA and they wouldn’t budge. Is there anything more we can do so we aren’t spending thousands of dollars for another roof?
Good article – thanks! I want to know what happens when an HoA lets the restrictive covenants for our community expire. Our community covenants were founded in 1953 for 30 years. They were renewed in 1983 for another 30 years, but they were not renewed in 2013. Does the HoA have any authority any more? Do they even have the authority to exist? We’re dealing with one of those nightmare HoA boards that take pleasure in harassing neighbors and consistently take people to court over pretty issues. Thanks in advance!
Hi Derek, you can call Chuck at the phone number below to ask, but can almost guarantee he’d refer you to an attorney since that’s very much a legal question. It’s an interesting situation to be sure… I’m sorry you’re having to deal with it.
Hi Ryan, feel free to call Chuck at 719-499-3554 to get his opinion, but it sounds to me like you may have a legal battle on your hands. I know that Chuck would recommend that you get a copy of the HOAs documentation as the first step, so if you haven’t done that, you should ask for it, and ask them for the very specific verbiage that refers to the colors they’re talking about. Then you can force them to prove their claim: if they can’t (or don’t), they might leave you alone. If they are trying to fine you or anything like that, it’s probably worth a call to an attorney.
We have an HOA with covenants and by-laws written by the developer years ago. In the articles he exempted himself from assessments on his unsold lots. He has since passed away and we have found a number of things with our water system he promised but did not produce. Members of the community want to start charging his heirs assessments for the unsold lots. Can we change the covenants to make this happen? This community is in southern Colorado
Hi Kent, that’s a legal question that you should ask an attorney about, but I asked Chuck about this. Here’s my conclusion from our conversation: the first place to start is to find out what year the subdivision was created and what year the HOA was incorporated. Is it before or after CCIOA was passed (1991)? The next question is to find out when the assessments started. Once a developer has constructed a subdivision and has commenced assessment liens (as written in the covenants), he has to start paying those assessments personally on the lots that are brought into the HOA, whether that’s five or fifty lots. So since most developers don’t want to pay an assessment on fifty vacant lots, they usually don’t commence the assessment until a number of people have moved into the community. So until then, he will pay all the expenses that the HOA would otherwise pay for (whatever the covenants say the HOA is responsible to maintain). Once he starts the assessment, he sends out a bill and collects payment (through a third party), then those lots or units will be called out as being a part of the subdivision. So having said that, it makes sense that the unsold lots have no assessment. I’d imagine that similar to the process with the original developer, assessment liens couldn’t be charged until they’re brought into the HOA. You definitely need to talk to an attorney for specifics on this scenario though, since the death of the developer certainly complicates things.
Hello, I was wondering if the land owned and maintained by a HOA (common areas, parks) is owned in any way by a member of the HOA community. How would that land be classified (Public, private, communal)?
Thanks soo much, I’m curious what my rights are to use the land, if any.
Hi John, I met with Chuck the other day and asked him your question. I will try to post the answer next week.
I am a living in Colorado in a community that has covenants but not an HOA. The current covenants do not address an HOA at all. The community is currently looking at setting up an HOA. The group seems to believe that this can be done with out updating the current covenants. They believe that a simple majority can create the HOA. The covenants say that it takes 2/3rds majority to change the covenants. So can 51% of the owners enact an HOA without changing the existing covenants?
Hi ShadowRiver, I met with Chuck the other day and asked him your question. I will try to post the answer next week.
I have an interesting question. We live in a community in Colorado that has covenants but no HOA. These covenants were recorded in 1991. During this time there was only one recorded amendment very early in the community’s history done so in accordance with the covenants. This community has been completely dormant with regard to the covenants until just recently. Now fast forward 25 years and there is a group of people trying to use the covenants to force the entire community into an HOA. I don’t want to be “forced” into an HOA. I would prefer to choose to be in one given the right circumstances. Is it legal for this group to force people into a HOA against their will considering these circumstances?
Hi Scott, I met with Chuck the other day and asked him your question. I will try to post the answer next week.
I live in an area that has a Road Association with elements of HOA (such as architectural elements), but our assessment monies are ONLY spent on road related expenditures. Also, we do not have “common areas”. Our roads all cross through private property due to easements. The road association has latitude 30′ from the center of the road on both sides. I am trying to determine if we fall under the 2013 statute or not.
Hi Connie, it’s a little hard for me to understand what the question is here. Does your Road Association have ownership interest in your property?
Does an HOA have any authority over whether you can rent your home or to whom you rent?
Hi David, I think Chuck’s answer would be yes. Covenants, Codes and Restrictions (CC&Rs) are legally binding documents and since the HOA generally has ownership interest in your property, they can enforce that which is in the CC&Rs. So there are two quick thoughts here: 1) if you’re thinking about buying in an area with CC&Rs that prevent you from renting out your home, read the governing documents before buying, and 2) find out if there’s an assessment lien on the home. Meaning, do you pay dues? If so, the HOA can lien your home if you don’t follow the rules.
I’m trying to understand some of the documents used in creating and maintaining a HOA. From what I understand there should be 4 things that an HOA needs: an incorporation document (which sets up the HOA as a non-profit), the Covenants & restrictions (which state hard regulations about property use), The By-Laws (which explain how to vote etc) and possibly another section called “Rules & Regulations.” It’s this last one that I am struggling to understand. I understand that the “Covenants & Restrictions” as well as the “By-Laws” are recorded documents that can be amended from time to time. I get that – makes good legal sense to me. I was given those documents when I purchased my property 3 years ago. I actually read it – thought that the covenants didn’t seem too onerous, and thought that was it. Now it sounds like there is also a “Rules & regulations” section that I have never seen, this document has never been recorded, and seems to get changed frequently. Is this OK? How can my property be subject to rules that arn’t recorded?
Hi SBC, how do you know it is “changed frequently”? Part of your question is definitely a legal question, so I’d recommend you ask an attorney, but generally speaking, I think an attorney would ask you to force them to prove that you’re in violation of something and make them prove it in writing. I don’t think anybody can hold power over you with a nebulous document that doesn’t actually exist.
Our subdivision road is within a 40 ft wide strip of land defined as common area. Is it legal for a homeowner to store logs and piles of firewood on this common area adjacent to the paved road?
Hi Albert, that’s a legal question, so you’d want to ask an attorney about that. I’m sure the answer would be “it depends…” and require more research into the governing documents, etc.
Can a HOA allow some lots to have RVs or boats parked in drive while others are not allowed? Some homes were excluded when originally purchased but others must follow the rules.
Shannon, I’d imagine that all homes have to follow the rules equally… but if there are some homes that are in the HOA and others aren’t, that would be different.
When an HOA wants to change the covenants, and you purchased the property based on the original covenants, does a homeowner have any rights?
Hi Alison, interesting question. What do you mean by “rights” exactly? Do you mean you want to dispute something, or you disagree with the proposed change of the covenants?
A member of our HOA has erected a large barnlike ‘shed’ that does follow the CCRs or the Building Guidelines. We were away when they put it up – is there anything we can I do now?
Hi Nancy, I’m assuming you mean “that does *not* follow” the building guidelines… right? If so, I’d say you should contact the HOA and let them know. Have you tried that yet?
Hi Judy, I talked to Chuck about this when I interviewed him, and here’s a quick summary of his answer: “The state statute (CCIOA) does allow for you to create a ‘Master Association’ in your neighborhood if you want, but it will be very difficult. You have to define the exact area you want included in the association, then all the homeowners have to vote on it, and you have to get a significant majority to agree to it. (I can’t recall, something like 67% or maybe even as high as 75%), and they have to agree to pay an assessment lien in order to be able to enforce the the rules. I tried to do this before in Mountain Shadows after the Waldo Canyon Fire to do a better job of maintaining the park and some other things, but very few people were interested, so it wasn’t going to work.”
So in your case, unless you think you can draw a boundary in your area where you can get the buy in of a large majority of homeowners to support it, you’re probably wasting your time. Especially since the people who rent out the homes are likely the homeowners themselves, and they’d be very reluctant to agree to pass rules preventing them from doing what they want, which is renting out their home.
If it really bothers you, there may be some laws in your state or city that restrict the number of days people can rent out their primary residence, or may require a permit, etc, but that’s about all I can suggest. You could look into that and see if your neighbors are complying with the rules that way. I hope that helps.
Hi, we bought a house 2 years ago in a new part of a subdivision and were given the so called condo docs. My neighbor who moved in a few months after us got a note from a member of the HOA in the older area. (I guess the builder will be handing our area over in August) telling her she needed to get rid of her small vegetable garden, it was not allowed, the rocks that she was landscaping with as they were ugly and not allowed, and some of her trees as she was only allowed 3 trees in the backyard etc, She was also told that if it was not all gotten rid of by August when the HOA took over she would be fined. I talked to some of my neighbors and we all have the same docs from the builder that says no chain link fences, no movable buildings etc, but no where does it tell you you can’t have a vegetable garden or more than three trees and how they have to be planted! Needless to say we are all upset as I too am waiting for a visit as my husband and I had started some landscaping and definitely have more than than three trees etc. Can they do this? As we were never given those documents when we purchase the property, can they enforce their HOA covenants now?
Hi Lorraine, you can call Chuck to get his opinion directly, but my first thought is that the burden of proof is on them. Meaning, ask them to show you exactly where the documentation says that you’re limited to only 3 trees, etc. Legally, I don’t know that they can enforce whatever they want unless it’s in writing as part of the governing documents, so if you ask exactly what you’re in violation of, in writing, they’d likely be required to show you that. Once you have that (if it exists), you can consult an attorney for your options. If you ask them for the documentation and they don’t have it (or don’t provide it), you’re probably off the hook.
Hi Linda, great questions. I’m pretty sure an HOA board can vote to spend money without asking homeowners, just like any other board can vote to spend money without asking stockholders. If you’d like a better answer, you can call Chuck directly if you’d like his input. You can reach him at (719) 499-3554.