Coming Soon
About 25% of Americans are governed by some type of homeowners association.
Here in Colorado, about half of the state's population is.
Homeowners associations have been called private governments because they do many things that governments do. HOAs hold elections, provide services, tax residents, and regulate behavior within their jurisdictions, but as legal entities, they are not governments.
To raise revenue for goods and services, HOAs lack taxing authority but not the power to charge assessments, which makes their inability to tax more a legal distinction than a real constraint. HOAs’ enforcement powers for failure to pay assessments equal those of local governments and allow them to place liens or foreclose on property, a power that the courts have upheld repeatedly.
- Barbara Coyle McCabe. “Homeowner Associations As Private Governments”. Public Administration Review. July/August 2011. At page 535 and page 537.
The current paradigm of H.O.A. law is that the authority and and power of H.O.A. corporations are broad; they are allowed to do anything that is not explicitly prohibited — whereas the rights of individual homeowners are constrained and narrow; they are only allowed to do that which is explicitly permitted. This paradigm needs to be reversed.
The authority and power of H.O.A. corporations needs to be neutered.
But too many "reformers" want to quibble about how far the H.O.A. industry should be allowed to shaft homeowners; and what kind of lubrication -- if any -- they should be required to use.
Some of the things I am for:
requiring the use of Small Claims Court as much as possible
limiting the authority and power of H.O.A. corporations to that which is only necessary to manage and maintain their common property; and prohibiting them from making and enforcing rules on a homeowner's own private property
banning non-judicial H.O.A. fines
authorizing and directing the consumer protection division of the Attorney General's Office to receive, investigate, and if necessary prosecute complaints from consumers of H.O.A.-burdened housing
Some of the things I am against:
the Department of Regulatory Agencies [DORA] usurping the role of the Judiciary to settle disputes between H.O.A. corporations and individual homeowners; and other attempts to replace Open Courts of Law with some type of out-of-court dispute resolution process
more "disclosure" and re-"education"/”training” to waive the rights of homeowners
continually amending Colo. Rev. Stat. § 38-33.3-106.5, the "Prohibitions Contrary to Public Policy" section of the Colorado Communist Interest Ownership Act (C.C.I.O.A.)
Although I am not a lawyer, I have represented myself — and other homeowners — in H.O.A. related litigation more times than I have ever wanted to. So I have seen how H.O.A. law actually works; and more importantly I’ve seen how it does not work.
During that time, I endured listening to out-of-touch lawmakers tell me how they were making things better for H.O.A.-burdened homeowners, while experiencing for myself how much worse things were actually getting.
I have been where the rubber meets the road, and I have the tire tracks on my soul to show for it.
The stories that lawmakers tell the public, and what actually goes on in the court rooms where their laws are enforced, are two very different things.
They have spent decades — and will continue to spend decades — pretending to solve what are really the simplest problems to solve — the petty authoritarianism and social conflicts within H.O.A.-burdened communities — while ignoring the ticking time bomb of serious fiscal problems caused by the extremely flawed business model of homeowner associations. Flawed for the homeowners who actually bear the burdens and pay the costs, that is — it’s working great for the managers and attorneys who profit by holding homeowners hostage.
This substack is very much related to my "Irony Curtain" substack about homeowner associations. But I want to separate the discussion of specific policy proposals from the larger discussion surrounding H.O.A.s.
Agreement on a goal is a prerequisite to classifying situations or conditions as problems. Mere identification of problems, however, is insufficient. One cannot propose solutions without adequately understanding the problems. If society’s intention in setting up associations is to encourage the formation of undemocratic Gulags ruled by unaccountable boards and for the enrichment of those who profit from owner ignorance or impotency - we have succeeded completely. Alternatively, if the intention is that associations be formed as microcosms of democracy in which informed owners collectively wield power, maintain their freedoms and are honestly served by their neighbors and trades people - we have failed miserably."
- Edward R. Hannaman. "Homeowner Association Problems and Solutions". Rutgers Journal of Law & Public Policy. Vol. 5 No. 4 Spring 2008. At page 699.