What happens when our HOA is dissolved by the State of Colorado

Was there a trunover to the members, who should have formed their own HOA and accepted responsiblity of all assets?

Who OWNS this property now?

At the end of the day......... what is your goal?

Well, I dont know about that. Many people refuse to buy in HOA controlled neighborhoods, so in some ways it deteriorates the value of the property by limiting the pool of buyers.

What do you think a new HOA can offer property owners as a benefit? Why should they pay dues? You need to give them reasons.

Do a deed search, see if the land was sold to this rancher. If not, I wouldn't call it taken over, but using. You could issue a letter from the HOA to him giving him permission to use the land. You cant claim adverse possession if the property owner gives you permission on a regular basis to use the property.

You have much work to do. Deeds, talking to other owners, getting insurance on common area, dues, etc.

I realize we may have some of the typical obstacles in creating and "selling" the idea of an HOA to the property owners. We can deal with that, and work the problems as they present themselves.
At this point, my primary question in this forum, is with regard to the rancher that has seemingly taken over use of the 320 acre community property. I know he did not purchase the property. I have checked the tax assessor's website, gone to the County Courthouse to research their records, and have spoken to the County Land Use Administrator. From what I can gather, he began to use this community property about 5-6 years ago, and my suspicion is, that because there was really nobody to challenge him, he just began to do it. Given his personality though, I don't feel I can get an honest answer from him regarding what he's doing.
So, my primary question is, who could, or how could anyone have given him authorization/permission to use this property? Can the original developer of the corporation that created this development do that? It seems to me, he'd have to try and legally reclaim this land, and take title to it, and then pay taxes on it. The tax records show it is still listed as being owned by the HOA, and the tax assessor says he could care less.

Dave, save yourself the hassle and headache of an HOA, I would never, never ,never buy into one again!!! Its just another layer of government on top of taxes you already pay. Its constant bickering with members all wanting something but never wiling to step up to the plate to take a position on the board and work for free. The only ones willing to run them are the ones that shouldn't be given any power because it goes to their head and they become Hitlers. Im sure there are some that run smoothly, but Ive not heard of any.
You have no idea what your getting into, leave well enough alone good luck

While I appreciate your opinion and input here, I don't agree with your opinion that I should leave well enough alone. In doing so, I lose all ability and partial control of 320 acres of nice property across the road from my home & land. How would you like it, if you had a man put up a fence in a large pasture, fill it with cows, and basically lock everyone else out of this community property. In his doing so, I have to detour 2 1/2 miles around this area, rather than ride my horse diagonally 1 mile across it. There are a host of other issues too. This rancher appears to be the sort that "if you give an inch, he'll take a mile". He seems to act like he owns this entire development.
We have about 5 miles of private road in this area, and while it doesn't need too much maintenance, it does need some. With the current situation, I raise the question of who even has the legal standing to sign a complaint with the Sheriff, if there is someone back here doing property damage, and you need to sign a standard "non consent" paper to have the Sheriff arrest someone. I just don't think you can take a development of this size, and ignor problems, and have no one knowing who owns a half section of lands.

I have been to the County Clerk and Recorder. In reading through the documents on file, it does have a copy of this properties covenants on file.
As far as who is paying the taxes, NO ONE IS, because the County tax assessor has levied 0.00 taxes on the 320 acres! The developer of this property, himself owns 36 acres, and somehow he got his taxes assessed at $5.40 on his entire lot. It's a crazy situation with the inequitable taxation of the properties out here, however that is not my immediate, primary concern.
Some folks have posted on here that there is a distinction between having the Secretary of State's offices "administratively dissolve" the HOA, and having the HOA only being in an inactive status. I think I should email the Sec. of State, and see if they agree the HOA can be re-activated by complying with their requirements.... Thoughts?

The HOA corporation CAN file an Annual Report with the State and get caught up with that paperwork. Expect to pay a slight fee. That just makes you recognized by the state as a corporation. the form WILL ask for a registered agent and someone needs to step up to that.

You have not answered the question as to WHO owns that land AND the other "assets" i.e. the road and WHO is responsible for its maintenance?

If some kid kills himself on that property because a cow sat on him, THEN who would be responsible?

Your board has gone "inactive" not your paperwork.

Sit down with the other landholders and find out who is interested in protecting the assets of the corporation.

But first, you need to get your paperwork in order. (CCRS, bylaws, treasurer's report, etc)

Dave, in your first post, you stated: “After initial set up, the development corporation also allowed the property association to be administratively dissolved with the State, as they never filed any of the necessary documents.” This suggests that an HOA does not exist, never did exist, and cannot be resurrected. I’m guessing that you can’t claim any interest in the 320-acres by being a member of an HOA that doesn’t exist. (You might also be concerned about who has ownership and maintenance responsibility for the roads. Were they dedicated to the county?)

There may be some language in your deed, or on the subdivision plat-map, which gives you some leverage. And, the title company may have some responsibility – check your title insurance policy. Also, you may have some rights if you’ve ever paid dues to the HOA. You’re probably going to need lawyers to fix this mess. Good luck.

Sorry, I misunderstood what was available to you.

It sounds like you found many of the “parts.” Here’s a summary of documents you might need:

Subdivision Plat – identifies the lots, parcels, tracts – usually filed with the county.

Ownership Records – these identify who owns which lots/parcels/tracts and what the HOA owns - usually filed with the county – any liens on HOA property should/might be filed with the county.

Corporate Documents – these document the existence of the HOA as a corporation - probably non-profit, for tax purposes – usually filed with the state – they may require an annual fee to keep current – that’s probably the $100 you mentioned.

Covenants (CCR’s) – these identify the authorities and responsibilities of both the owners and the HOA – they are usually filed with the county – they might also identify which parcels are owned by the HOA – they usually require a super-majority of owners to modify.

Bylaws – these typically identify the roles/responsibilities of the Board and its members, and how to fill Board vacancies – they are not typically recorded.

Rules and Regulations Governing the Use of the Common Areas – these are typically adopted by the Board and might contain provisions such as “no grazing in the common areas.”

Hope that helps get you focused.

Now, it appears you are going to take the lead in fixing the situation. Be advised that it will be a hell of a lot of work. You will receive more criticism than appreciation. Some of your neighbors will end up hating you, and you may hate them. Many of the owners won’t want to help. You probably won’t receive any thanks for your efforts. So, go in with your eyes wide open.

Good luck.

Here’s a link to a Colorado law-firm site that repeats much of what I summarized above – only better.

http://www.cohoalaw.com/your-governing-documents-is-your-community-built-on-a-solid-foundation.html

Well thank you for your detailed & relevant information. I am in pretty good shape with respect to what documents already exist and are in place, it's just that the property owners association was State dissolved. The website you provided is also a wealth of information.

Now, I have a new, and perhaps even bigger problem though, and I wonder if anyone familiar with the set up of H.O.A.'s has ever encounterd something like we have here?
The problem surfaced when I read over the covenants. First of all, the "Declarant", who is the developer, says he set our association up, to be exempt from Colorado's Common Interest Act, so he doesn't have to follow that.
Next, the Declarant set the bylaws and declarations up, so that he has the final say with respect to just about everything till 2029. He can appoint board members and terminate them at will. It also says he can, in layman's terms, seize the lands in the community area, and further subdivide, or control what becomes of it, use wise as he pleases. These are some of the major aspects of things.
Has anyone ever heard of a developer doing stuff like this before? It seems like a big scam to get people to buy lots, and yet he can manipulate things anyway he chooses. When most things like this are influenced by money, I expect things wouldn't go the way of the association.

With regard to having problems with this developer perpetuating his control till 2029, I can believe we might have lots of problems with him. Is this common for a developer to do something like this? It seems so unethical.

Hi Dave:

Colorado has a new Information Office and Resource Center and the website address is:
http://www.dora.state.co.us/Real-estate/licensing/subdivisions/HOA.htm

The HOA Information Officer would potentially be able to let you know whether or not a developer could exclude CCIOA. I would potentially think he could not exclude State Statutes as they also potentially offer some consumer protection for Common Interest Communities.

After he maybe tells you that the State Laws do apply the following is regarding declarant control:

(5) (a) Subject to subsection (6) of this section:

(I) The declaration, except a declaration for a large planned community, may provide for a period of declarant control of the association, during which period a declarant, or persons designated by such declarant, may appoint and remove the officers and members of the executive board. Regardless of the period of declarant control provided in the declaration, a period of declarant control terminates no later than the earlier of sixty days after conveyance of seventy-five percent of the units that may be created to unit owners other than a declarant, two years after the last conveyance of a unit by the declarant in the ordinary course of business, or two years after any right to add new units was last exercised.

When the statute above references “unit” the item with regards to land which describes units would be the plat, so check with the plat was filed with county records for HOA.

I agree that we shouldn't have bought the lot. However I was naive, and expected the outfit to act in good faith, as I did....
How would you like it, if you lived in a development that had a golf course out your back door, and after the developer sold all the lots but the one he keeps to maintain control, and then closes the clubhouse, and begins digging more basements on the fairway. Would you think the developer was unethical if that happened to you?

This guy has in total, $5.40/year in taxes for this entire development, while the owners that have 28 lots are being taxed on the residential value of their acreages. I think we all acted in good faith, and just wanted the basics out of a property owners association. The developer lives out of state, and would probably be way further ahead to write his losses off in his taxes and let us take this over.

Hi Dave:

If it ends up that you are actually governed by CCIOA and that he cannot exempt the state statutes, then he cannot control till 2029. State statutes supersede Covenants ... a developer can put anything they want in covenants, but it cannot violate state laws. If covenant does violate then that section is potentially null and void.

DaveE,

I picked up on, in your post, that “the Declarant, who is the developer, says that he set our association up, to be exempt from Colorado’s Common Interest Act” - and wondered, as did Janet what does that mean.

So I did some Google searching and found in the search results a Colorado Association’s Declaration that has the following sentence: “Because this Declaration does not create a “common interest community” as defined in the Colorado Common Interest Ownership Act, Section 38-33.3-101, et seq., Colorado Revised Statutes, this Declaration is not governed by that Act.”

Then I continued to Google and found this commentary:

http://www.cohoalaw.com/governance-community-association-101.html

In that article it states that:

A community that does not contain common property is not considered a common interest community under CCIOA.

The terms of CCIOA do not apply to communities that are not considered common interest communities.

If a community is not subject to CCIOA, either because it qualifies for one of the exceptions or is not considered a common interest community, the homeowners association is only subject to the provisions of the declaration, its bylaws and rules. It may also be subject to the Nonprofit Act if organized as a nonprofit corporation.

Dave, can you provide the wording in your Declaration that exempts your Association? Is it because there is no common property?

Hi Ellie … Nice research … according to Dave in his previous posts they have 320 acres of community property. This is what made me think they did not qualify for exemption from CCIOA. However, I also recommended that Dave double checks with the HOA Information Officer for the State of Colorado to verify. Thank you for pitching in with such great research to help an HOA member.

Dave … if tax assessor shows owned by HOA Corporate entity then that is a potential good start. I am not an attorney but I have read CCIOA too many times to count and have some parts memorized. My association also has a declarant involved so I am very familiar with those sections of the statutes.

Hi Dave:

Clarification please:

Is the HOA set up as a Non-Profit Corporation? Is this corporation the “development corporation” in which you are referring? Per the Articles of Incorporation how are you set up and is corporation essentially in same name as noted in Declaration for HOA?

I have done a lot of searching today and have not yet found anything where a developer/declarant has completely excluded CCIOA. Some items I did find are as follows.

Here is an article regarding some of your questions we are attempting to find answers:

http://www.cohoalaw.com/governance-community-association-101.html

CCIOA generally applies to all common interest communities formed on or after July 1, 1992. However, there are exceptions for small cooperatives and limited expense planned communities and large planned communities. Only certain provisions of CCIOA apply to pre-existing common interest communities formed before July 1, 1992, although any pre-existing common interest community can elect to have all the provisions of CCIOA apply to it. The terms of CCIOA do not apply to communities that are not considered common interest communities.

If a common interest community is subject to the terms of CCIOA, membership in the homeowners association is mandatory and shall at all times consist exclusively of unit owners in the common interest community. In such communities, homeowners associations (referred to in CCIOA as a “unit owner’s association” or simply “association”) are subject to the terms of CCIOA, as well as the association’s declaration (the recorded instrument that creates the community), bylaws, and rules. If the association is organized as a nonprofit corporation it is also subject to the terms of the Colorado Revised Nonprofit Corporation Act (“Nonprofit Act”).

If a community is not subject to CCIOA, either because it qualifies for one of the exceptions or is not considered a common interest community, the homeowners association is only subject to the provisions of the declaration, its bylaws and rules. It may also be subject to the Nonprofit Act if organized as a nonprofit corporation.

Now CCIOA definition of common interest community is:

(8) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

If qualify as a CIC this section of CCIOA states in part:

38-33.3-115. Applicability to new common interest communities.

Except as provided in section 38-33.3-116, this article applies to all common interest communities created within this state on or after July 1, 1992. …..

The basics of Section 116 are as follows:

38-33.3-116. Exception for new small cooperatives and small and limited expense planned communities.

(2) If a cooperative or planned community created in this state on or after July 1, 1998, contains only units restricted to nonresidential use, or contains no more than twenty units and is not subject to any development rights, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable. If a planned community created in this state after July 1, 1998, provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed four hundred dollars, as adjusted pursuant to subsection (3) of this section, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable.

To be exempt from certain sections as a Large Planned Community this statute would potentially apply:

38-33.3-116.3. Large planned communities - exemption from certain requirements.

(1) A planned community shall be exempt from the provisions of this article as specified in subsection (3) of this section or as specifically exempted in any other provision of this article, if, at the time of recording the affidavit required pursuant to subsection (2) of this section, the real estate upon which the planned community is created meets both of the following requirements:

(a) It consists of at least two hundred acres;

(b) It is approved for development of at least five hundred residential units, excluding any interval estates, time-share estates, or time-span estates but including any interval units created pursuant to sections 38-33-110 and 38-33-111, and at least twenty thousand square feet of commercial use.

We cannot physically see your governing documents, so you would need to read and determine if any information would pertain. We are not attorneys and can only provide information from statutes per your questions and based on our own experiences and knowledge. You would need to speak with a local attorney (many will offer free consultation) to get a definate legal opinion. If you consider scheduling an appointment, let me know as there is potentially some steps you should take before to insure information is available because generally the free part is only about 20-30 minutes on a consultation. Therefore, you want to be prepared and use the time wisely.

My answers to your questions are as follows:

The HOA is set up as a non-profit corporation in the Articles of Incorporation.
The Development Corporation has a different name than the Property Owners Association, but has some similarity in the title words.

Today, I received an email response from the Colorado HOA Information Officer. I thought I'd just paste it in here, and see what you all think of his answer. While I knew some of the information he references, I thought the second portion was especially interesting. See what you all think?

Dave,

Intriguing questions. Truthfully, this is a very unique predicament. Let me see if I can’t clarify some of the issues for you.

Perhaps a little background information would be instructive. When a developer begins the division of the development, as part of the recording of the deed he records the covenants against the properties. The plats and maps delineate the parcels that are encumbered by the covenants. The association (whether it be called a property owners’ association or homeowners’ association) is often created through the covenants. As part of the creation of the HOA you need to create and incorporate the association and they must adopt bylaws. When the HOA is first created, the developer maintains control of the affairs of the association board. The developer under CCIOA is referred to as the declarant. Pursuant to CCIOA (Section 218), once created an HOA cannot be terminated but for the agreement of at least 67% of the voting members consent unless the declaration specifies a large percentage. Under CCIOA the declaration can provide for a period of declarant control where the declarant can appoint and remove officers of the Board. Furthermore, the period of control cannot be more than sixty days after conveyance of 75% of all units, two years after the last conveyance of a unit by the declarant or two years after any right to add new units was last exercised. After 25% of the units are transferred by the declarant, one homeowner needs to be placed on the board. (Section 303). So depending on how the covenants are written, but not later than the time that the homeowners take control of the board, the declarant needs to deed over the common areas to the HOA.

So as to your situation. First the covenants cannot exempt the HOA from CCIOA. Any HOA created after July 1, 1992 is automatically under CCIOA and you cannot by agreement opt out of its jurisdiction. The declarant can choose who is on the board and remove board members, subject to the requirements in CCIOA (see above) and the bylaws, declarations, or other governing documents. The provision related to developer control again is a matter of what is in the covenants and also addressed in Section 303(5)(a)(i).

The statutory period for adverse possession in Colorado is 18 years so you should be OK with the rancher running his cattle on the community land. The HOA could use an ejectment action to get their property back. As to what to do with the development company, you may have to legally compel them to act to reform the corporation and maintain the common areas. But if you have the requisite number of lots occupied to take over the HOA you may just want to proceed with formation. These are very complicated questions and I highly recommend utilizing legal counsel to navigate this mess. I would contact the Colorado Bar Association for a referral (www.cobar.org). You can also explore reforming the documents to comport with the requirements of law.

Let me know if you have any other questions.

Regards.

Aaron Acker
HOA Information Officer
Colorado Department of
Regulatory Agencies
Division of Real Estate
1560 Broadway, Suite 925
Denver, CO 80202
P 303.894.2355 | F 303.869.0518
www.dora.state.co.us

My answers to your questions are as follows:

The HOA is set up as a non-profit corporation in the Articles of Incorporation.
The Development Corporation has a different name than the Property Owners Association, but has some similarity in the title words.

Today, I received an email response from the Colorado HOA Information Officer. I thought I'd just paste it in here, and see what you all think of his answer. While I knew some of the information he references, I thought the second portion was especially interesting. See what you all think?

Dave,

Intriguing questions. Truthfully, this is a very unique predicament. Let me see if I can’t clarify some of the issues for you.

Perhaps a little background information would be instructive. When a developer begins the division of the development, as part of the recording of the deed he records the covenants against the properties. The plats and maps delineate the parcels that are encumbered by the covenants. The association (whether it be called a property owners’ association or homeowners’ association) is often created through the covenants. As part of the creation of the HOA you need to create and incorporate the association and they must adopt bylaws. When the HOA is first created, the developer maintains control of the affairs of the association board. The developer under CCIOA is referred to as the declarant. Pursuant to CCIOA (Section 218), once created an HOA cannot be terminated but for the agreement of at least 67% of the voting members consent unless the declaration specifies a large percentage. Under CCIOA the declaration can provide for a period of declarant control where the declarant can appoint and remove officers of the Board. Furthermore, the period of control cannot be more than sixty days after conveyance of 75% of all units, two years after the last conveyance of a unit by the declarant or two years after any right to add new units was last exercised. After 25% of the units are transferred by the declarant, one homeowner needs to be placed on the board. (Section 303). So depending on how the covenants are written, but not later than the time that the homeowners take control of the board, the declarant needs to deed over the common areas to the HOA.

So as to your situation. First the covenants cannot exempt the HOA from CCIOA. Any HOA created after July 1, 1992 is automatically under CCIOA and you cannot by agreement opt out of its jurisdiction. The declarant can choose who is on the board and remove board members, subject to the requirements in CCIOA (see above) and the bylaws, declarations, or other governing documents. The provision related to developer control again is a matter of what is in the covenants and also addressed in Section 303(5)(a)(i).

The statutory period for adverse possession in Colorado is 18 years so you should be OK with the rancher running his cattle on the community land. The HOA could use an ejectment action to get their property back. As to what to do with the development company, you may have to legally compel them to act to reform the corporation and maintain the common areas. But if you have the requisite number of lots occupied to take over the HOA you may just want to proceed with formation. These are very complicated questions and I highly recommend utilizing legal counsel to navigate this mess. I would contact the Colorado Bar Association for a referral (www.cobar.org). You can also explore reforming the documents to comport with the requirements of law.

Let me know if you have any other questions.

Regards.

Aaron Acker
HOA Information Officer
Colorado Department of
Regulatory Agencies
Division of Real Estate
1560 Broadway, Suite 925
Denver, CO 80202
P 303.894.2355 | F 303.869.0518
www.dora.state.co.us

Hi Dave … Well let’s analyze the section:

38-33.3-116. Exception for new small cooperatives and small and limited expense planned communities.

(1) If a cooperative created in this state on or after July 1, 1992, but prior to July 1, 1998, contains only units restricted to nonresidential use or contains no more than ten units and is not subject to any development rights, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable. If a planned community created in this state on or after July 1, 1992, but prior to July 1, 1998, contains no more than ten units and is not subject to any development rights or if a planned community provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed three hundred dollars, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable.

(2) If a cooperative or planned community created in this state on or after July 1, 1998, contains only units restricted to nonresidential use, or contains no more than twenty units and is not subject to any development rights, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable. If a planned community created in this state after July 1, 1998, provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed four hundred dollars, as adjusted pursuant to subsection (3) of this section, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable.
(3) The four-hundred-dollar limitation set forth in subsection (2) of this section shall be increased annually on July 1, 1999, and on July 1 of each succeeding year in accordance with any increase in the United States department of labor bureau of labor statistics final consumer price index for the Denver-Boulder consolidated metropolitan statistical area for the preceding calendar year. The limitation shall not be increased if the final consumer price index for the preceding calendar year did not increase and shall not be decreased if the final consumer price index for the preceding calendar year decreased.

Here is the website for the Colorato State Statutes:
http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp=

TITLE 38 PROPERTY - REAL AND PERSONAL

REAL PROPERTY

Interests in Land

ARTICLE 33.3 COLORADO COMMON INTEREST OWNERSHIP ACT

Per the section where declarant exempted it potentially needs to meet the following criteria:

First Bold Area:

* Null … You are not restricted to non-residential use per your statements of homes built.
* Null … Per your statement the covenants are for 28 parcels which in essence would be 28 units.
* Null … Development rights is in essence an “and” statement to the above; therefore, potentially would not apply as it would be both 28 parcels and development rights. Because first half is null then the second half maybe should not apply.

Second Bold Area:

38-33.3-105. Separate titles and taxation.

38-33.3-106. Applicability of local ordinances, regulations, and building codes.

38-33.3-106.5. Prohibitions contrary to public policy - patriotic and political expression - emergency vehicles - fire prevention - renewable energy generation devices - affordable housing - definitions.
38-33.3-106.7. Unreasonable restrictions on energy efficiency measures - definitions.
38-33.3-107. Eminent domain.

However potentially would be null because already with first bold the statute does not apply.

Third Bold Area:

Potentially null as it states “prior to July 1, 1998”.

Fourth Bold Area:

* Null … if per your statements you are residential use and contain more than 20 units.

Fifth Bold Area:

Now that can potentially be a stickler in that does it specifically state in the Declaration that the common expense liability cannot exceed $400 then potentially you are subject only to sections 38-33.3-105 to 38-33.3-107.

Aaron is a darn sharp crayon in the box in my opinion and pretty much confirmed what I thought with regards to not being exempt from CCIOA. I would say with the information at this time and not being an attorney IMO that you are under CCIOA unless there is info in the above referenced “fifth bold area” regarding “specifically stating $400 or less liability for common expenses”. At that time you possibly would not be exempt, but potentially only guided by a portion of CCIOA as noted above.

Hi Dave:

Darn … I hate when I think I have the appropriate HTML code to bold sections and have a snafu. Sorry, the following should show the appropriate areas I was referencing:

38-33.3-116. Exception for new small cooperatives and small and limited expense planned communities.

(1) If a cooperative created in this state on or after July 1, 1992, but prior to July 1, 1998, contains only units restricted to nonresidential use or contains no more than ten units and is not subject to any development rights, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable. If a planned community created in this state on or after July 1, 1992, but prior to July 1, 1998, contains no more than ten units and is not subject to any development rights or if a planned community provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed three hundred dollars, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable.

(2) If a cooperative or planned community created in this state on or after July 1, 1998, contains only units restricted to nonresidential use, or contains no more than twenty units and is not subject to any development rights, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable. If a planned community created in this state after July 1, 1998, provides, in its declaration, that the annual average common expense liability of each unit restricted to residential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed four hundred dollars, as adjusted pursuant to subsection (3) of this section, it is subject only to sections 38-33.3-105 to 38-33.3-107, unless the declaration provides that this entire article is applicable.

(3) The four-hundred-dollar limitation set forth in subsection (2) of this section shall be increased annually on July 1, 1999, and on July 1 of each succeeding year in accordance with any increase in the United States department of labor bureau of labor statistics final consumer price index for the Denver-Boulder consolidated metropolitan statistical area for the preceding calendar year. The limitation shall not be increased if the final consumer price index for the preceding calendar year did not increase and shall not be decreased if the final consumer price index for the preceding calendar year decreased.

It would potentially depend on how it is worded in your documents. Again, I am not an attorney but if you would like to post the exact verbiage from your governing documents regarding the $400 common expense liability section I will be more than happy to give a personal opinion.

And … you are more than welcome as I am more than happy to help a fellow Colorado resident with any knowledge I may have regarding CCIOA. I have not posted very often this last week or two and will be tied up for about a month with trying to get passed a local ordinance to protect property owner and property rights regarding the construction guidelines. What caught my eye on a quick look was the fact when you posted you included Colorado in the title.

Hi Dave:

If your documents state 28 units or parcels then that would be your number. If an owner owns two parcels of land then they would potentially have two votes in the association.

While your HOA would be somewhat under CCIOA it potentially appears because of the $400 limit that you would be subject only to sections 38-33.3-105 to 38-33.3-107. And which only covers the following sections, in essence not a lot.

38-33.3-105. Separate titles and taxation.
38-33.3-106. Applicability of local ordinances, regulations, and building codes.
38-33.3-106.5. Prohibitions contrary to public policy - patriotic and political expression - emergency vehicles - fire prevention - renewable energy generation devices - affordable housing - definitions.
38-33.3-106.7. Unreasonable restrictions on energy efficiency measures - definitions.
38-33.3-107. Eminent domain.

I would recommend sending a response email to HOA Information Officer with the following question:

Personally I do not see any reason for Section 116 to be in the statutes except as a possible loophole because it potentially offers no protections for homeowners purchasing in good faith and allows for unscrupulous actions. IMO it should only apply to voluntary membership HOA’s and not to those where the CCR is attached to your property. This may be something the state legislators need to review and maybe change to include all of Part 3 of CCIOA under Section 116 to insure recourse and proper management of the association.

Because you notified the state with your questions it potentially gives legislators an idea of any sections and issues encountered to hopefully fix for the future.

Hello Janet,
Well, I received a reply from Aaron Acker yesterday, regarding the question you suggested I ask him. Here is his entire response:

Dave,

Good question. I would presume since they are exempt from CCIOA (but for 105-107). The Declaration would have to address this. I would talk to an attorney.

Regards.

Aaron Acker

I am quite disappointed in his response. I realize that at some point, I might need to consult with or hire an attorney to keep moving forward, however I was hoping to determine if I had standing, at least in my own mind, to move this forward. In that he is the public information officer for HOA related matters, it thought he'd weigh in with his opinions on this matter. It seems these days, a lot of folks are quick to refer others to an attorney.

Do you think I've reached a dead end now?

Great advice Janet. I had thought of some of this myself, however your info and organizational suggestions were great. Your other advice also has been great.
What I am thinking of doing next week, is sending a letter to the out of state developer. He has seemingly just gone dormant, and totally dropped the ball here for several years now. I thought I'd write him a letter, inquiring about the property owners association, and asking him what his plans are? As tactfully as I can, and in a non-threatening (?) manner, I would like to point out that I have an expectation of either having him fulfill his responsibilities in having a working Board of Directors, and an active association that is in good standing with the State and County.
In considering his reaction to the receipt of the letter, he might very well ignore it. If he does that, then I might resend it via certified mail, to better insure he actually received it. If he got a 2nd, certified letter, it might reinforce that I am not letting this issue slide. If he ignores all correspondence, that might work in some small way to our advantage as well? I think if I pointed out that he has a responsibility to us property owners, to give us leadership and representation in our rights, you never know, he might wash his hands of this place? I'm not counting on it, however I have very little to lose at this point. I also consider whatever I've learned here in the facts of the situation, although not great news, is better information to have acquired.
Any more ideas here?
Dave