Judge Takes Place of Vacant Approving Authority

Jerry:

I am not familiar with how the courts are organized in Colorado but in Arizona a Small Claims (or Justice Court) would have no jurisdiction to grant this kind of injunctive relief. Original jurisdiction in that case would be in the Superior Court. It is a little late to ask, but did you seek out any legal advice before going into court?

Personally, I think a judge should know what he or she has jurisdiction to do but its not likely that anyone else has brought a case like this into her court in the past. While her request that you provide case law that she has jurisdiction sounds unusual I think she is giving you an opportunity to save your case before she dismisses it for lack of jurisdiction. Dismissal for lack of jurisdiction means you need to find the court that does have jurisdiction. You may have the right to the relief requested but you may be requesting it from a court that cannot grant it.

BTW, when an attorney writes up a civil complaint, the first few paragraphs normally establishes why that particular court has jurisdiction to grant the relief sought and why it is the proper venue.

Jerry:

How old is your property? How many units do you have?
Why or how has the HOA been allowed to go inactive?

It is amazing to me that the owners simply allow the HOA to no longer operate and then when they are faced with a violation of the covenants turn to the courts to enforce their own documents.

Sounds like they expect a judge to do the job none of them are willing to do. IMO that duty belongs to the property owners and if they choose to stay uninvolved then learn to live with the fence and any other eyesores that might pop up.

Jerry,

I have a couple of more questions:

1) Is this a voluntary or mandatory Association (i.e. are you required to pay assessments)?

If you are, then the existing board would have been the approving authority.

2) Does your governing documents or State law give a time frame that the approving authority must reply to a request?
I ask because many Association have an automatic approval if there is no response within x days.

I was (without thinking) answering some messages via my email. So, I'll copy and paste in here to bring this up to date.
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Message Topic: RE: Judge Takes Place of Vacant Approving Authority

Posted By: TimB4

Jerry,

I don't know of any case laws. However, check your governing documents as most deed restrictions (which are really a contract) provide authorization for individual members to enforce the covenants through a court of law.

If this is the case with your Association, I would point out that this is basic contract law and provide a copy of the contract (deed restrictions) with that section highlighted.

Note: Some States don't give small claim courts the power to grant an injunction, some do. You will need to check what your State allows. It's possible that you are in the wrong court.
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Message Topic: RE: Judge Takes Place of Vacant Approving Authority
Posted By: TimB4

Jerry,

I have a couple of more questions:

1) Is this a voluntary or mandatory Association (i.e. are you required to pay assessments)?

If you are, then the existing board would have been the approving authority.

2) Does your governing documents or State law give a time frame that the approving authority must reply to a request?
I ask because many Association have an automatic approval if there is no response within x days.
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Jerry Penland
9:28 AM (11 hours ago)

The Covenants are legally binding documents filed with the county and must be agreed to by signature as you purchase a house in the neighborhood.

However, there is no common property to maintain and since the HOA has been basically inactive since around 2002, there are no dues – voluntary or mandatory.

Our Covenants state that the Approving Authority MUST have three members who are property owners. The members are also part of the county filed paper and can be amended and refilled as necessary . However, two of the three are no longer property owners so that leaves us with only one. Since the HOA is inactive, no additional members have been added. The one remaining has not officially resigned but no longer wants to be involved with the HOA – says he no longer wants to tell folks they can’t do something.
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We're getting off point here but I will respond so it may become clearer.

At Closing, we were given a copy of the Covenants and acknowledged by signature that we are purchasing property that is subject to the Covenants provided. I assume that's by law since I can't imagine purchasing property subject to HOA Covenants but not finding that out until after closing.

Also, you're right, there is no listing of the homeowners with the closing documents provided. We were only told via the Covenants provided and verbally the County Covenant Filing (HOA) that we belonged to. I had to do the research to find out exactly what property was in the HOA and who owned each property.