Fighting Your HOA:A Legal Guide

The Lowdown on HOAs Many neighborhoods inColorado, particularly thosebuilt within the past couple ofdecades, have homeownersassociations (HOAs). In theory,the HOA is set up to benefitresidents.

Many HOAs are able tonegotiate lower rates for localcity services, such as trashremoval, for instance, throughthe power of combined assets.It's also common for HOAs to

oversee neighborhoodamenities, such as swimmingpools, clubhouses, tenniscourts, and walking trails.

Often, properties incommunities with HOA bylawsare better kept than those inneighborhoods without them,as homeowners are held to thethe HOA rules. As a result,homes in HOA-managedcommunities tend to havebetter resale value.

We’ll FightYour HOA

Unfortunately, the board membersof an HOA can sometimes engagein illegal or abusive behaviortoward neighborhood residents.Although the Colorado CommonInterest Community Act (CCIOA)governs how most HOAs arecreated and operated, it also givesHOAs powers that its boardmembers, neighborhoodmanagement companies, andattorneys abuse.

How the HOA Goes Wrong

You have legal recourse if you feelyour HOA has it out for you.Robinson & Henry, P.C. HOAlitigation attorneys can help youhold your unlawful HOAaccountable. Schedule a caseassessment at 303-688-0944.

Depending on your situation, wehave a variety of strategies to useagainst an abusive HOA, includingboard member replacement.

BoardMemberRemoval

Homeowners have the right toremove board members with orwithout cause. Your HOA'sgoverning documents shouldoutline steps to call a specialelection in your neighborhood.

To prevent the HOA's attorneyfrom stopping the process, youmust follow the steps exactly.

You can elect a new member or anentirely new board once the specialelection is in place.

If the board member’s actions areespecially egregious, you may beable to go to court to have theboard member removed.

fraudulent & deceptiveconductgross abuse of authority

Allegations could include:

BE AWARE - Removing boardmembers can be time-consuming

and expensive.When new board members are elected, the old board

members do not have the power to harass you.Furthermore, the new board can fire the management

company, its attorneys, and begin with a new team.

Revoke the ManagementCompany’s Registration Colorado law requires that HOAmanagement companies registerwith the Colorado Department ofRegulatory Agencies. If themanagement company loses theirregistration, or if other HOAs learnabout the company's inappropriatebehavior, it risks losing business.To determine whether legal actionagainst the management companyis warranted, we will first ensurethat the company is registered.Then we'll determine if theprincipals are properly licensed. Ifappropriate, we'll helphomeowners file the complaintwith the Colorado Department ofRegulatory Agencies, Division ofReal Estate. Finally, if necessary,we'll take civil action against theHOA management company.

Determine if the HOABoard Met its Duties

The HOA board of directors hasnumerous obligations to thehomeowners, including fiduciary

duties, the duty to act prudently,the duty to act diligently, the dutyof care, the duty of loyalty, theduty of confidentiality and theduty to act within the scope ofauthority.

If you suspect that a director isacting improperly, especiallyregarding fiduciaryresponsibilities, we can investigatethe claims.

Although a director's liabilitymight have been reduced if thebylaws indicate that homeownerswaived the right to recover againstthe director, under Colorado law,certain claims against the directorwill not be eliminated, includingclaims about:

UNLAWFUL DISTRIBUTIONS

UNLAWFUL LOANS TO THEDIRECTOR

BREACH OF THE DIRECTOR'SDUTY OF LOYALTY

ACTS OF OMISSIONS NOT INGOOD FAITH

INTENTIONAL MISCONDUCT

A KNOWING VIOLATION OF THELAW

The HOA must "guarantee the...owner notice and an opportunity to

be heard before an impartialdecision-maker." - Colorado Law

Defend AgainstEnforcement ActionsIf you feel the board is takingunnecessary or unfair actionagainst you, you can defendagainst it in a couple of ways.

If the board failed to follow the setrules in the governing documents,your violation might be considerednull.

You are legally entitled to anopportunity to point out what youthink is unfair about the action anddefend your position regarding it.Most homeowners and manyattorneys are unaware of thisportion of the law and end upcaving to the HOA's pressure.Sometimes an HOA's actionagainst you could be seen asselective enforcement of a rule orenforcement of an abandoned rule.If either case is provable, your HOAis being arbitrary, and you have alegal defense against the action.

Seek a Declaratory Judgment The court can determine the rightsof the parties without orderinganything to be done or withoutawarding damages.

If the HOA has ordered you tomake a change or removesomething from your property,seeking a declaratory judgmentmight be for the best.

Damages &Remedies If your HOA is found to beviolating the law, you maybe entitled to receivecertain remedies,including:

monetary damages foryour direct and indirectexpenses

attorney's fees

punitivedamages

injunctions and restrainingorders to stop illegalactions

Inspecting Your HOA KNOW YOUR RIGHTS:

As a homeowner in an HOAcommunity, you have the rightto review certain HOAdocuments, including:

HOA records, end-of-yearrecords, receipts andexpenditures records

governing documents,including current declaration,covenants, bylaws, articles ofincorporation, rules andregulations and policies

records of claims and moniesreceived for them

minutes from meetings, votescast by each member, andactions taken by the board, andresolutions adopted by theboard

communications among boardmembers, including writtencommunications

recent three years’ financialstatements and seven years’tax returns

the most recent annualreport delivered to theSecretary of State

financial records of anyunpaid assessments anowner currently has leviedagainst his or her unit

the most current reserves study

current contracts the HOA isparty to, as well as those forwork performed in the lasttwo years

homeowner requests fordesign or architecturalapproval

contact information of thecurrent board members andofficers

ballots, proxies, and otherrecords related to ownervoting

the past three years’ writtencommunications sent tohomeowners

homeowner names andaddresses

If the HOA refuses to giveyou access to its records, wecan demand them for you.

If you believe your HOA is acting illegally,unethically, or inappropriately, set up a meeting

with a member of our HOA Litigation Team. Call (303) 688-0944 today.

We understand the ins and outs ofhomeowners' rights regarding

neighborhood associations, and we canhelp you determine the best course of

action for your situation.

Schedule a Case Assessment