Home > Research Legal Advice > Real Estate > Can this HOA be forced to cease & desist operation since its initial inc...
Asked almost 3 years ago - Westcliffe, CO
Flagrural colorado subdivision:(23) 35 acres lots, covenants filed in 1984.no community property. No HOA was established. In 2002=death of the subdivider so a few neighbors got together to help widow with the road fund. A local atty has 2nd home here, so at his suggestion we incorporated into an official HOA. Now neighborhood bully is spying on people with binoculars, getting proxies from out of state owners, and is taking over meetings to harass other using the 'nuisance' clause in the covenants if he cannot find another infraction. I am pursuing the possibility of getting 2/3 (16) votes to Dissolve the HOA. However, it occurred to me, that we never got a 2/3 vote to Initiate the HOA in 2002. Can this HOA be forced to dissolve due to never having secured a 2/3 written vote in 2002?
The first answer is pretty weak.
In Colorado, the formation and actions of an HOA are controlled by the Colorado Common Interest Ownership Act (CCIOA). Your HOA may or may not have been formed properly, you have to see the act provisions to figure that out. The mere incorporation of a company called the HOA is not the formation of an HOA. Without covenants, declarations, bylaws and possibly rules & regulations, no HOA exists. The corp would be basically just a voluntary association.
HOA's are a really dangerous thing in Colorado. The statute above gives an association tremendous power that is super easy to abuse without any real recourse by the residents. You should definitely get some like minded neighbors together and buy a couple of hours of an experienced attorneys' time. You will have to give the lawyer all of the documents relating to the original subdivision, hoa incorporation, etc.
Some attorneys sell unbundled legal services where you pay for just what you need and can afford. For example, in this case some attorneys would be happy to set a price just to revie the documents and meet with you to provide an opinion of what's going on and recommend alternatives to handling Mr. Bully. A lawyer used to unbundled work can also sell the paperwork for changes, proxy fights, etc. You do the work on your own, but with the knowledge that your paperwork is correct.
Good luck. jim
www.NeighborhoodLawOffice.com
NOTICE— The Legal Information contained in this answer is provided solely for informational purposes and is is not intended to create an attorney-client relationship between you and me or my law firm. Such Legal Information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon such Legal Information. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege.
You will need a Colorado lawyer for the state law stuff, but there is something you must do before you start to dissolve. Every owner must pull out their mortgage and see if they signed a PUD Rider. This rider prohibits the dissolution of the Assn and makes doing so a default under the mortgage.
DISCLAIMER The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the Commonwealth of Pennsylvania. Responses are based solely on Pennsylvania law unless stated otherwise.
James S. Tupitza
212 West Gay Street
West Chester, PA 19380
There are several steps involved in creating a subdivision subject to reciprocal covenants governing uses, architectural controls, cost sharing and common maintenance of private roads. Historically, a "Declaration of Covenants, Conditions and Restrictions" (CC&Rs) is recorded in the local land records. This imposes the covenants on all the lots in the subdivision. Also, a subdivision plat is typically approved by the local jurisdiction and then recorded to create the various individual lots. Then the developer files "Articles of Incorporation" with the state agency that regulates the formation of corporations--usually the Secretary of State. That creates the Association (HOA). The developer then adopts "Bylaws" governing the operation of the Association--voting rights, Board powers, meeting and notice provisions, etc.
When all of this is completed you have a subdivision subject to covenants, the operation and enforcement of which is entrusted to the Association. All lot owners are mandatory members of the Association. When your state adopted the Common Interest Ownership Act (CIOA), the legislature imposed requirements on the developer as to how to subject the lots to covenants and how to create the Association. If the owners did not comply with the requirements of the CIOA in 2002, then the Association may not be validly created. However, if the covenants were recorded in 1984, they would be valid unless the CIOA was in effect in 1984 (which I don't believe it was).
The conclusion is that you may have valid covenants but not a valid Association. The corporation may still exist but it may not have the power to enforce the covenants. You should contact a Colorado community association attorney for futher advice.
Don't speak legalese? We define thousands of terms in plain English.
Browse our legal dictionary