Is there authority to create rules on the unit

I am looking for some opinions. The below are verbatim from our Declaration and there is nothing missing from these sections.

Definition 1.31 Rules: "The rules are the rules and regulations for the use of the Common Elements and for the conduct of persons in connection therewith within the common interest community, as may be adopted from time to time by the executive board pursuant to this declaration."

Section "17.2 Adoption of Rules: The executive Board may adopt Rules regarding the use and occupancy of units as it affects the common elements and the activities of occupants, subject to notice and comment."

I am intimately familiar with our entire document... in fact hundreds of hours of intimacy, lol. At any rate, there is absolutely nothing in the governing documents that explicitly allows the HOA to create rules as they affect the unit directly.

Our community is rural with 5-35 acre lots, and county roads. This being said, our HOA has created a rules and regulations document as of last year that contains rules down to requiring approval for a rain barrel attached to your downspout, has added restrictions directly to covenants that do not exist (ie. adding sheds to a covenant that prohibits temporary structures), has added rules for decorations, flags, sculptures, lighting down to the wattage, type of fire in your firepit (explicity allowed in the covenants) and the list goes on. Now they are attempting to create a definition for a term in a covenant that is ambiguous, and the attorney even says it is ambiguous. Creating a definition not contained within the declaration may be changing the declaration without a vote. At any rate, based on just these two quoted sections above would anyone disagree with me that the HOA does not have the authority to create all of these rules on the Unit specifically, but only if they happen to affect the common elements? (for reference our common elements are only our trail systems that run between properties).

Thanks for your input.

Hi Jennifer

You should also be looking at Colorado statutes, which my supplement or override the wording in your CC&Rs.

On the particulars, they look picayune for a 5-35 acre rural community.

Oops... I couldn’t edit my previous response. The trails, which are a common element consist of easements of about 25 feet of many people’s properties, so in this regard a rule on the unit as it would directly affect the common elements makes sense (no obstructing the trail, no building on the trail etc, but these are already covenants anyhow). As far as statutes they support making rules for common elements however they absolutely do not explicitly states the HOA has the authority to make rules affecting the unit.

Is there anything in your docs or the statute on "limited common elements"? You might find something there.

What about the terms "common facilities" or "controlled facilities"?

The only other things I can think of is some kind of right to set aesthetic standards. But I'm sure you already looked for those.

I understand that they are taking liberties with the definitions. Can you get enough of your neighbors to challenge that decision.

While the rules are on your side, you now need to consider the politics of your HOA.

Certainly you have solid arguments on intrusion into your rights, but can you get enough people who care enough to join you?

How much do you think the lawsuit is going to cost your HOA?

Other than the Board and the 10 families, how are people lining up - For or against the HOA?

Well, in December we had a vote of the board with seriously 91% representation of 247 units and there were 2 camps.... one camp that ended up being the simple majority of the association and supported the current policies/procedure/ and board and then the other nearly equivalent 1/2 supported the change we are seeking and represent a less invasive and activist HOA. So the community is honestly pretty evenly split even still, and especially as they are now aiming to create definitions of terms in the covenants for the purpose of creating further restrictions that are not covenant provisions... this topic is well covered in CO case law however. As far as the cost the HOA will incur I don’t know, however the insurance accepted defense of the claims and we have requested summary judgement since the facts are not in dispute. This means at the current juncture we have already litigated and are awaiting a ruling from the judge..if they lose I’m not sure they will appeal as I really do think the insurance attorney knows they don’t have a strong case.... in fact the board has been paying the HOA attorney separately to agree to the course the insurance attorney is taking. It’s a shit show honestly. They got themselves into this mess because a group wanted something so bad that they disregarded the previous HOA attorney’s written opinion that was mailed/distributed to the owners, and then found another attorney who agreed with them and sent a different opinion which is the one they relied on. Two opposing attorney opinions... I think that was a gamble for them anyhow and took the stance that they would proceed and only have to deal with it if someone brought suit, otherwise the amendment would stick. They deliberately played their cards and called our bluff. It is extremely unfortunate but ultimately people just want to see the lawsuit go away and don’t want to invest more money to fight it... that is the overall sentiment.

repeat

..... in favor of the attorneys

John, they certainly aren’t being helpful! And in favor of the attorneys, who’s attorneys? Do you have any input into this based on my original post and the definitions?

NPS, in terms of your surprise over the attorney client privilege I agree... so what they have stated in order to defend the issue is that the first attorney provided conflicting information in order to create questions. Our attorney was thinking about contacting her and letting her know they are throwing her under the bus... she was actually extremely thorough and very professional. The attorney the association has now is cocky and she and her firm have been sued even before us for giving bad advice/malpractice. Not many people actually sue a legal firm!

Well you hired a lawyer to handle your situation and then complain that we are pro-supporting lawyers? It comes down to what the lawyers do in court on your behalf. If you all were actually handling the situation, then there would not be any lawyers involved in your situation at all. Instead you are all hiring lawyers to handle your business. Who's fault is that?

The thing is that your speaking in confusing generalities. Basically, if I recall the issue is that you and a few other neighbors don't want chicken coups. There is another group that has chicken coups. It's not against the rules to have them. You all want to change the rules so that they are no longer allowed. Apparently, the HOA hired an attorney to either help change the rules or to protect their stance against those suing? That is what not clear on.

Are you suing the HOA for allowing chicken coups or not changing the rules? Otherwise, it sounds like the HOA hired a bad lawyer and has a new one. Your all still complaining about the bad lawyer. Which if your suing your HOA you are suing yourself and your neighbors. That bad lawyer was the Board's NOT the suing party. So why would you be mad about the HOA hiring a bad lawyer if that gives you a leg up for your lawsuit to win?

Just ignore Melissa, only 1/10 of her posts actually contain information that only some can decipher. She's all over the place and she automatically goes into defense mode when she see's someone has filed suit. Her famous line "suing yourself is suing your neighbors" Melissa, any chance you can refrain from using this line? Go live in a 3rd world country or small town where they use this line to intimidate citizens from exercising their rights.

It's clear Jennifer is suing the HOA for failure to get the required votes to change the common area purpose.