Tuesday, November 25, 2014

Enforceable, not more, HOA Laws Needed

The complaints about Homeowners Associations (HOAs) are not that State's lack HOA laws but that they lack enforceable HOA laws from the home owner's perspective. In Colorado there are numerous, comprehensive, and definitive laws governing HOA laws. The problem is that the authors and sponsors of these Bills left out the most important aspect of law: enforcement. This is like having speeding laws without fines for violations. In many cases this was absolutely deliberate to get support for passage from those legislators whose votes are influenced by well financed political machines such as HOA lawyers and the Community Association Institute (CAI). HOA law thus provides very good guidelines and principles but without an accessible and affordable means for home owners to pursue their rights HOA legislation becomes more ornamental and providing mostly the illusion of protection of homeowner's rights.

Home owners who don't comply with HOA governing documents can be readily fined and even have homes foreclosed upon. Violations by HOA Boards and property managers of State HOA law and HOA governing documents, however, leave home owners in a vulnerable and helpless mode. Home owners' only workable means for enforcing HOA law is our costly, litigious, and time consuming court system that matches the limited funds and time of the home owner against the unlimited financial and professional resources of the HOA. Even the most simple right of a home owner that is violated by an HOA Board such as gaining access to HOA financial records, challenging conflicts of interests or demanding full and accurate documentation on private Board meetings or minutes of home owner meetings requires the home owner to go to court: not hardly a fair or workable means for governing the HOA.

What is needed to make HOA governance and HOA laws effective from both the HOA and home owner's perspective is an out of court binding dispute resolution process. This process in Colorado has been endorsed in a State mandated study on dispute resolution and only awaits legislative sponsors. Implement this system and most HOA Board and property manager complaints related to non-compliance with HOA law will quickly be mitigated. The system will save taxpayer dollars as it takes case load out of the overloaded court system; disputes are paid for by the parties involved in the complaint (not taxpayers); it sets up a fair venue for dispute resolution (one based on facts and merits of a complaint and not based on an ability to pay); lawyers are not required; trained arbiters in HOA law are used ensuring knowledgeable people will conduct and make decisions on complaints; the system is low cost, timely, and provides for a guaranteed decision on any complaint; and no home owner is denied to use the court system if they choose.

So enough with more ineffective and mostly administrative HOA laws. What we need is an enforcement system to make the existing laws enforceable.

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