Sunday, August 24, 2014

Colorado HOA Law and Enforcement: the Illusion of Home Owner's Rights

HOA home owners are locally governed by the HOA's covenants, controls, and restrictions (CCRs) and by-laws.  There are also State laws that describe and establish a clear, comprehensive, and uniform framework for the creation and operation of common interest communities (HOAs).  So it appears we have plenty of laws both within the HOA and in State HOA law to protect home owners from abusive Boards and property management companies, inappropriate and illegal practices, and to promote open governance.

A reality check from the home owner's perspective will shock most HOA home owners.  If you read these laws you will find that enforcement verbiage from the home owner's perspective is missing, lacking, or unworkable.  The main and most widely used means of HOA home owner's rights suggested in Colorado law are mediation and our court system.  To date, and from the thousands of inquiries and complaints received by an unknown State HOA Office, these two remedies in dispute resolution have been a failure.

Mediation has been practiced for decades and has at best not served home owners well.  Think about it.  A home owner must gamble hundreds of dollars on a mediation session (if the HOA is willing to mediate) and there is no guarantee a solution will be reached.  Even when there is an agreement an HOA can ignore the agreement and that leaves the home owner back to our court system attempting to gain enforcement or re-litigate their case.  Most home owners simply can't gamble hundreds of dollars on a process that has no guaranteed outcome.  The Colorado HOA Forum's web site has an extensive discussion on mediation vs other methods of dispute resolution.

Then there is our litigious, time consuming, costly, "pay to play" court system.  Most HOA complaints simply don't belong in court.  They are simple matters related to such issues as non-compliance with HOA governing documents or State law and complaints against the HOA property management company.   HOAs are not adverse to going to court.  The HOA understands they use their unlimited funding from HOA dues to fight your limited personal means.  The HOA lawyers get paid win or lose.  No HOA Board member will be held personally accountable in the event you win.  If you lose you end up paying for your lawyer and most likely the costly HOA legal fees.  This is a sad venue for justice for home owners and thus most home owners simply don't pursue enforcement of their rights.  The track history of too many home owners in court is financially disastrous and thus court should be avoided.

Another means of enforcement is through arbitration and this is mentioned in State law but rarely pursued and not understood.  A form of arbitration called med-arb (mediation-arbitration) allows for conducting a mediation session with a definite and enforceable outcome: a beginning and end in the complaint process.  Basically, if the parties can't agree to a solution the empowered mediator - arbiter will decide for them.  Actually this not different from our court system in which the judge decides for the parties but avoids the high cost, litigious processes and procedures, mitigates the time to litigate, and doesn't require lawyers.  It ends the "pay to play" legal venue and saves both home owner and HOA the expense of litigating and saves taxpayer money by removing these cases from our already over burdened system.  No legal rights are forfeited by home owners as they can still opt to go to court.  This process is being pursued in several States and most recently has been advocated in a Colorado State mandated report on HOA dispute resolution.  Implementation only requires legislative sponsorship.   Med-arb is a recognized legal process and in fact a similar process will be used in handling home owner complaints against Colorado HOA property managers upon implementation of the property manager licensing law in 2015.  If this is good enough for property manager complaints why not for home owner vs HOA complaints.

Until HOA home owners get an out of court binding dispute resolution process such as med-arb our State HOA laws remain more of an illusion of home owner protection than realtity.

Friday, August 22, 2014

Will Colorado HOA Home Owners be Ignored by Legislators, Again?

This past Colorado Legislative session was a loss for home owners with proposed legislation to save HOA home owners millions of dollars in unjustified fees reduced to a meaningless disclosure Bill.  Another proposal to preclude HOA Boards from using HOA funds on law suits without home owner approval died.  Then there was just a lack of interest by legislators when asked to sponsor Bills to limit the amount of special assessments a Board can levy without home owner approval, limiting fees and administrative charges on HOA debt (not pocketed by the HOA), and follow-up on a State mandated study that would provide for an out of court binding dispute resolution process for most HOA home owner complaints.  The big winners with HOA home owner legislative efforts were the Community Association Institute (CAI), lawyers, and property managers who lobbied to ensure HOA Bills and issues were not addressed and/or when introduced as legislative Bills were killed or watered down to retain the status quo.

Our group, Colorado HOA Forum, , will again begin our efforts to gain legislative sponsors to reform HOA governance.  This should be a somewhat easy task with over two thirds of Coloradans living under HOA governance, with thousands of complaints received by the State HOA Office, and equal amounts of emails and telephone calls received by legislators about HOA concerns.  However, opposition groups are well funded and influential in our State legislature.

This is an election year and HOA home owners need to ask their legislators questions about who they represent in HOA issues.  HOA issues for this voting group affect their lives financially, legally, and socially as much if not more than any issue.

Friday, August 15, 2014

Who or What is the Community Association Institute (CAI) and HOA Reoform?

Homeowners Associations (HOAs) are comprised of three entities: home owners, HOA Boards and their legal counsel, and the property management company (PMC).  Problems can arise from any of these but for those who follow HOA issues the involvement of PMCs can be most problematic. PMCs affect HOA governance with their direct involvement in operational and financial matters and through their trade organization, the Community Association Institute (CAI), which has undue influence in HOA legislative activities that craft HOA law.  For decades the sole source for Homeowners Association (HOA) information for the media and the State Legislature has been the CAI.  Why not?  Their name implies they represent the concerns of community associations and home owners: aka HOAs.  Legislators "trust" this organization to represent home owners and citizen interests but most have no idea who or what they represent.  Legislators actually think their membership and funding comes from HOA home owners and HOAs:  WRONG.   They have trusted this organization for decades and have allowed them to set the rules in HOA governance and financial management.  Yes, they craft the legislation that sets the rules for their industry and interests and ensure through their actions that HOA State law and HOA governing documents are highly enforceable from the HOA Board’s and PMC perspective and very weak for home owners. Due to this close relationship between the CAI and legislators across the country, HOA legislative reform has been very difficult and the few Bills that have passed have been watered, are more cosmetic than effective, and in no way help with enforcing home owner’s right

If you visit CAI or their legal affiliate web sites and read their literature you would think they represent HOA home owner interests.  Wrong!  Their membership is mostly comprised of PMCs and lawyers.  The CAI is an organization that derives most of its’ income from selling their educational classes.  Nothing wrong with this but read below on how they commingle this business with legislation.  Then there is CAI “the trade organization” for PMCs.  Not hing wrong with this either except that they have ensured all State HOA laws aren’t written to hold PMCs accountable for their actions.  Then there is the connection between the CAI and HOA lawyers who have ensured through their legislative influence that no binding, affordable, and accessible out of court dispute resolution processes is available to resolve HOA home owner complaints. This of course ensures HOA legal enforcement from the home owners perspective against abusive HOA Boards and PMCs remains in our litigious, time consuming, pay-to-play court system making HOA law mostly ineffective. 

The CAI and the entities they represent and work with in State legislatures have thwarted HOA legislative reform for decades.  Recent examples: killing an HOA Transfer Fee Bill that would have limited the fee and required explanation and justification of the fee (this costs home owners in Colorado $10 million a year); opposition of a Bill that would have required HOA home owners to approve the use of HOA funds prior to entering into expensive legal actions; opposing an out of court binding dispute resolution process for home owner complaints (leaving home owners with only our pay to play court system for the most minor dispute resolution); their involvement in writing Colorado legislation to license property managers resulted in using such legislation to promote their sales of educational courses and hence drive up the cost of such required educational courses for property managers; opposing the limiting HOA fees, fines, and administrative and legal fees on HOA debt; opposing term limits on Board members when others are available to serve; obstructed legislation on protections of home owners against liens and foreclosure for HOA debt; attempts to promote legislation that would expand the independent authority of Boards in governing HOA operations (without home owner approval); and the list goes on and all anti-home owner.  You can blame the CAI for the lack of HOA reform with their legislative intervention but much blame also goes to our political process that makes money the name of the legislative game and places unfunded citizen groups at a disadvantage. 

The CAI and its constituents are the most anti HOA home owner group in the nation and in Colorado they most certainly are a wolf in sheep’s clothing and our legislators and the media are only beginning to realize their role. The beginning of HOA legislative reform and improved governance thus begins with dispelling the belief that the CAI represents home owners; revealing their history and actions in HOA legislative reform; curtailing the CAI’s influence with our Government agencies, media, and legislators; and having HOA home owner groups recognized in our legislature and in the media to offer a home owner centric perspective to improving HOA governance.



Colorado HOA Forum: Newsletter May - July 2014

The Colorado HOA Forum has just published its' latest newsletter:  May - July 2014.  The newsletter can be accessed on their web site  

CAM Licensing Provides for Out of Court Binding Dispute Resolution, why not same for HOAs ?

We would like to see the Colorado Department of Regulatory Agencies (DORA) speak out in support of our out of court binding dispute resolution proposal  Regardless of what they may claim, they do get involved on some level with legislation.  This was exhibited when they tacitly endorsed an empty disclosure law to rein in HOA transfer fees vs a direct law to limit this abusive fee.  They were quoted by legislators and the CAI as not endorsing a law to limit transfer fees.  Furthermore, DORA has directly allowed interest groups to write their regulatory guidelines as is the case with property manager licensing with CAI input.   

This Office completed a study on HOA complaint resolution in which our proposal for an out of court binding process was recommended.  The proposal awaits a legislative sponsor and surely DORA’s opinion will be sought.  We hope DORA points out when questioned by legislators in the next legislative session that they will be providing an out of court dispute resolution for property manager complaints.  If it is good enough for property managers (and all others that DORA regulates) it is a valid process for HOA home owner complaints.   

FHA Loans, CAI, and Transfer Fees

The CAI is continues to attack home owner wallets in their defense of transfer fees assessed on HOA home sales.  If you recall it was the CAI that led the effort to kill the Bill in Colorado that would have limited/ended transfer fees.  That cost home owners over $10 million a year and fattened their constituent bank accounts.   

The FHA will be issuing new rules to limit or end transfer fees assessed by third parties.  Basically, any home sale involved with assessing buyers transfer fees will not be eligible for an FHA loan.  This supports what we advocate and maybe our legislators will get it this time around and vote for home owners and not property managers and lawyers with legislation limiting HOA transfer fee. 

The National Association of Realtors has come out to oppose transfer fees that developers and others assess home buyers to generate private revenue and profit.  They still are not on board with prohibiting or limiting HOA transfer fees assessed by property managers that our group has written extensively on and lobbied our legislators in Colorado.  When will the Colorado Association of Realtors (CAR) and our State representatives stand up to the lawyers and the CAI to end transfer fees and defend the folks who put bread on their plate: home owners?  Ask CAR?  Email: 

If the new FHA guidelines limit or prohibit the assessment of transfer fees on their loans this would be a good first step and help in promoting legislation in Colorado to end this abusive and unjustified fee.  The new rules will be published later this year.  



Colorado HOA Forum's 2014-2015 Legislative Initiative

The Colorado HOA Forum’s legislative Goals and Objectives for 2014-2015.  If you support a goal (s) please take time, using our web site, to write your State legislator asking them to sponsor legislation to make it the law.

1. Include an out of court binding dispute  resolution process in all Colorado HOA laws (replace courts and mediation).
2. Improve upon Colorado legislation that licenses HOA property managers
3. Limit fees and administrative assessments on HOA debt.
4. Increase the roles, responsibilities, authority, and enforcement capabilities of the Colorado HOA Information Office and Resource Center including involvement in administering an out of court binding dispute resolution process
6. Require realtors and HOA home buyers to be provided with the following information and certify they received and read them: a copy of the HOA's governing documents; information on insurance coverage provided via the HOA; any HOA homeowner debt or HOA liens associated with the home; a current HOA financial statement;  the amount of HOA dues; any current and/or planned special assessments; status of the HOA reserve fund; the number of rentals and foreclosures in the HOA; rental restrictions and other items identified in our HOA Home Buyers Guide.
7. Term limits on HOA Board members when others are willing to serve. 
8. Include as part of the HOA registration process a certification that HOA Board members read their own HOA governing documents and applicable information posted on the State's HOA Office’s web site concerning State HOA law.
9. Limit the amount of special assessments an HOA Board can levy without approval of home owners.
10. Require HOA Boards to gain home owner approval prior to entering into law suits using HOA funds.