Association Enforcement Policy Gone Wild?
How much can your Home Owner's Association Board do without a vote of the owners? When the association Board adopts an enforcement policy, owners pay attention. Enforcement policy can include fines and fees. The association Board likely has the right to adopt an enforcement policy without directly consulting the owners.
An HOA’s Declaration of Covenants often includes language empowering
the association to enforce the Declaration. The Bylaws typically outline the
powers and responsibilities of the association Board, including the power to write
policies and procedures.
This is consistent with
Colorado statutes. Colorado Revised Statute 38-33.3-209.5(1)(b)(IV)
states: “To promote responsible governance, associations shall… Adopt policies,
procedures, and rules and regulations concerning… Enforcement of covenants and
rules, including notice and hearing procedures and the schedule of fines.” The
Board can act on behalf of the association in all instances (C.R.S. 38-33.3-303(1)(A)).
An association Board can probably act on behalf of the association in writing covenant
objecting to Board-adopted enforcement policy can always contest that policy
through the politics of the association. Owners can contact other owner and
express their opposition. The more support from other members, the more
pressure can be applied to the Board. In addition, members have a right to
attend association Board meetings other than executive session. (C.R.S.
38-33.3-308(2)(a)). The law and the governing documents allow the association
Board to act under its own authority, yet the Board is supposed to represent
all members. If the Board is not acting in the interests of the owners, the
solution may be to vote them out at the next election and then re-write
covenant enforcement procedure.
Turner, Esq. This column is not legal advice nor
does it create an attorney-client relationship with the reader. Due to limited
space, complex legal concepts and rules may be stated in terms of general
concepts. Based on 2019 Colorado and Federal law. Consult legal counsel
before acting on any information contained in this column.
Submitted by Doug Turner, Douglas A. Turner, Esq.