Covenants, no HOA, but group is trying to force a HOA

I live in a community that has lived peacefully with recorded covenants but no HOA for 25 years. Recently a group of residents is trying to force the entire community into a HOA. Is it possible to be forced into a HOA in a situation like this? We live in Colorado and the covenants were recorded prior to the CCIOA laws passed in 1992.

I agreed to the covenants, but not a standing HOA. What I can't reconcile is this. If it is possible to forcibly seize control of the covenants and form a HOA, can't anyone do it at any time? How does an HOA get its authorization for those covenants?

Scott,

The bad news is that the Colorado Supreme Court took a flying leap in the face of overwhelming opposing opinions from other states and held that owners may impose new burdens on themselves, including mandatory membership in an HOA that did not exist previously. See: EVERGREEN HIGHLANDS ASSOCIATION v. WEST at http://caselaw.findlaw.com/co-supreme-court/1183127.html

This was a 2003 decision and I do not know if it still stands but I believe it does.

The answer to your question, "How does an HOA get its authorization for those covenants?" is that by purchasing property subject to covenants you implied agreement with their terms. Covenants usually have some mechanism for amending and if your fellow homeowners agreed to an amendment to include an HOA then you are stuck.

The most important element of this is the one you omitted: How did they do that? If those in favor of a mandatory HOA followed the amendment process laid out in your Declaration, including recording the amendment then you are likely now an HOA member. On the other hand, there have been numerous attempts at imposing new restrictions through other means, such as amending bylaws or an HOA board simply declaring everyone is a member. If you are concerned about this then I suggest consulting an attorney asap to verify that your neighbors followed all the rules.

It not really that there was never a HOA, but that your HOA was inactive. The CC&R create the HOA.

I think LarryB13 nailed it. The case law of Colorado demonstrates that if the covenants are modified to include a HOA clause in accordance with the ammenent process of the covenants they can they force you into a HOA. Our covenants have a change clause and it is obvious this group is looking to exploit the change clause in this fashion.

Yea that.

Scott

How do you all enforce the Covenants?

Doesn't sound too peaceful. What changed, and what covenants are there to enforce? Is there any property or infrastructure?

Scott,

We recently created procedures that outline how CCR violations are handled. In fact, the CCIOA mandates such a policy/procedure. As I understand it, without this documented procedure, the Association is unable to levy fines. People don't like it, but we remind them that they agreed to the covenants when they bought their property. This procedure outlines the process (e.g., initial contact with the offending party, a hearing with the Board, and letters documenting what will happen and when if a problem is not resolved) and when fines would be levied.

If you are fine with the covenants and the community why don't you incorporate a HOA first and beat these people to the punch? Even draft your own amendments to prevent abuse?