A Man’s Home Is His Castle
Colorado Homeowners Protection Act
Legislative Declaration
In Colo. Rev. Stat., replace § 38-33.3-102 "Legislative Declaration" with the following
(1) The General Assembly hereby finds, determines, and declares, as follows:
(2) In 1991, Colorado passed House Bill HB91-1292, "The Colorado Communist Interest Ownership Act" (C.C.I.O.A.), into law as Colo. Rev. Stat. Title 38 Article 33.3, which went into effect in 1992.
(3) In the original Legislative Declaration of the C.C.I.O.A., Colo. Rev. Stat. § 38-33.3-102, the General Assembly declared “That it is in the best interests of the state and its citizens … that the continuation of the economic prosperity of Colorado is dependent upon the strengthening of homeowner associations … by increasing the association’s powers”.
(4) Three decades of experience have amply demonstrated that:
(a) This was a grave error by the General Assembly.
(b) "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.
(c) “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.”
- Barbara Coyle McCabe. “Homeowner Associations As Private Governments”.
Public Administration Review. July/August 2011. At page 535.
(d) “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 537.
(e) “Homeowners associations are prevalent and their actions impact property values, property rights, living environment, and personal rights of the residents; and many of the HOA’s have abused their power, disobeyed the law, and generally acted in ways harmful to their members and have failed to meet their fiduciary duties.”
- Larimer County Republican Party. "Resolutions - 2006". Resolution # 24.
(f) “An H.O.A. is a private corporation that has governmental authority. You don't have the due process that is guaranteed when you are dealing with the government.”
- Jon Caldara. Independence Institute ("Colorado's Free Market Think Tank").
The Devil's Advocate. November 14 2014.
(g) “More property rights are violated at this most local level of government than any other. When a homeowner's property rights are violated by their HOA, they have few options – other than to move.”
- Libertarian Party of Colorado. January 21 2008.
(h) "You cannot have a corporation controlling its own government. That is not good governance. I think it's absolutely in the best interest of the State to be able to bring accountability to a previously corporate-run government."
- Ron DeSantis, Governor of Florida. January 12 2023.
(i) "The main threat to your ability to live your life as you choose does not come from the government anymore, but comes from the private sector."
- Tucker Carlson. National Conservatism. July 15, 2019.
(j) Homeowner Associations "are creatures of statute. As a consequence, the government has a special responsibility to protect the rights of those living in them. Owners are entitled to and desperately need a willing and activist State agency with the proper authority and responsibility to act publicly for the owners. The designated State agency must act publicly and unequivocally in the owners’ best interests. No agency can have - or deserves - the owners’ trust if it is willing to work behind closed doors with any trade group lobbying in the interests of those profiting off of associations and which actively opposes any meaningful owner rights".
- Edward R. Hannaman. "Homeowner Association Problems and Solutions".
Rutgers Journal of Law & Public Policy. Vol. 5 No. 4 Spring 2008. At page 718.
(k)(I) "The Legislature needs to revise statutes in accordance with actual owners’ experiences over the past 30 years. These revisions must protect owners from documented and anticipated board abuses. Neither the legislature nor any regulatory agency can expect uniform good faith compliance, statutes and necessary implementing regulations must be carefully and comprehensively drafted if they are to result in compliance."
- Edward R. Hannaman. "Homeowner Association Problems and Solutions".
Rutgers Journal of Law & Public Policy. Vol. 5 No. 4 Spring 2008. At pp 720 – 721.
(II) The Colorado General Assembly has been reactionary, not pro-active, when creating legislation to protect consumers of H.O.A.-burdened housing.
(III) The Colorado General Assembly has utterly failed to carefully and comprehensively draft legislation to address documented and anticipated abuses.
(l) A current paradigm of H.O.A. law -- the authority and powers of an H.O.A. corporation are broad, it is 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 -- needs to be reversed.
(5) That it is in the best interests of the state and its citizens, and that the continuation of the economic prosperity of Colorado is dependent upon, protecting consumers of H.O.A.-burdened housing from the abusive, fraudulent, predatory, and criminal business practices of H.O.A. board members, H.O.A. managers, H.O.A. attorneys, and other H.O.A. vendors, by
(a)(I) Requiring that all litigation to enforce claims under the C.C.I.O.A. be filed in Small Claims Court, when such claims would fall under the currently existing jurisdiction of Small Claims Court.
(II) Small Claims Court is an agency that already exists to simplify, streamline, and reduce the costs of litigation.
(III) The General Assembly estimates that 99% of C.C.I.O.A. claims fall under the already existing jurisdiction of Small Claims Court.
(IV) This will remove the perverse incentive and moral hazard of H.O.A. corporations to engage in destructive and expensive litigation over trivial amounts and reasons.
(b)(I) Neutering the authority and power of H.O.A. corporations, by
(II) limiting them to that which is only necessary to manage and maintain their common property, and
(III) prohibiting them from making and enforcing rules on a homeowner's own private property.
(c)(I) Prohibiting H.O.A. corporations from assessing and collecting non-judicial fines.
(II) This will create an equity of legal remedies between individual homeowners and an H.O.A. corporation.
(III) If non-judicial fines are necessary to enforce compliance with the governing documents of an H.O.A. corporation, then individual homeowners should be allowed to issue non-judicial fines to the Directors & Officers of an H.O.A. corporation.
(IV) “The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States [and of the State]. Neither can a fine be imposed disguised as an assessment.”
- Unit Owners Association of Buildamerica v Harry Gillman. Supreme Court of Virginia. 223 Va. 752; 292 S.E.2d 378, 1981
(d)(I) Authorizing and directing the consumer protection division of the Attorney General's Office to receive complaints from H.O.A.-burdened homeowners, and remedy any violations the Office determines to have been made.
(II) The consumer protection division of the Attorney General's Office is an agency that already exists.
(III) There is no reason its authority and scope should not include protecting consumers of H.O.A.-burdened housing.
(6) When the homeowners fear the H.O.A., there is tyranny. When the H.O.A. fears the homeowners, there is liberty.