That the system is rigged in favor of the corporation in residential associations is irrefutable. Housing consumers are required to sign a “take it or leave it” contract when they buy a house, without knowing or understanding what they are getting into. Then, when things head south, as they are wont to do, the homeowners are described, by the HOA industry as horrible, irresponsible people for failing to abide by the provisions in the supposed contract that they allegedly agreed to. Even attorneys are left scratching their heads trying to decipher the mountain of legalese designed to strip homeowners of rights and property.
Bill Davis joins us On The Commons. Bill, a Texas attorney is one of a handful of attorneys across the country who represents homeowners in HOAs. Unlike the “experts in HOA law” who typically represent associations and have an inherent conflict of interest when it comes to working for the owner, Bill has no ties to the industry nor does he owe allegiance to the corporations that govern these developments. We talk to Bill about one of the most heinous powers associations have been given by misguided legislators, the power to FINE their neighbors seemingly for no other reason other than they happen to be in a bad mood. More than one court has found fines to be an unconstitutional delegation of a police power, however the very people who benefit the most from this practice have convinced legislators that it is constitutionally permissible to “sign away your rights”. Yes, it goes back to that contract I was talking about. Listen to some of the tools homeowners may have when it comes to fighting the abuses of the unfair practice of arbitrarily punishing a neighbor.
Tell Your Own Story From the HOA Trenches
The recording stopped half way thorugh, just when I was listening most intently–come back to us….
A lot of us (whom the 3 member Board doesn’t like) have received fines or ‘charges’ on our ledgers without being told or notified
One owner is being sued by the Board just because she requested records in 2016 –no records have been given !
In Colorado, the power of an H.O.A. corporation to assess fines “without specific authorization in the declaration” — and declare unpaid fines and other junk fees to be unpaid assessments — is statutory, under the Colorado (so-called) Common Interest Ownership Act (C.C.I.O.A.):
C.R.S. § 38-33.3-102. Legislative declaration. (1) The general assembly hereby finds, determines, and declares, as follows:
(b) That the continuation of the economic prosperity of Colorado is dependent upon the strengthening of homeowner associations in common interest communities financially through the setting of budget guidelines, the creation of statutory assessment liens, the granting of six months’ lien priority, the facilitation of borrowing, and more certain powers in the association to sue on behalf of the owners and through enhancing the financial stability of associations by increasing the association’s powers to collect delinquent assessments, late charges, fines, and enforcement costs;
C.R.S. § 38-33.3-302. Powers Of Unit Owners’ Association.
(1) Except as provided in subsections (2) and (3) of this section, and subject to the provisions of the declaration, the association, without specific authorization in the declaration, may:
(k) (I) Impose charges for late payment of assessments, recover reasonable attorney fees and other legal costs for collection of assessments and other actions to enforce the power of the association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association.
C.R.S. § 38-33.3-316. Lien for assessments. (1) The association, if such association is incorporated or organized as a limited liability company, has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner. Unless the declaration otherwise provides, fees, charges, late charges, attorney fees, fines, and interest charged pursuant to section 38-33.3-302 (1) (j), (1) (k), and (1) (l), section 38-33.3-313 (6), and section 38-33.3-315 (2) are enforceable as assessments under this article.