There’s not much to do in Wellington, Colorado. It sits on the dusty plains of Eastern Colorado on the border with Wyoming, surrounded by corn and sugar beet fields. It’s an inordinately boring town that features a couple of local coyote packs, a small school, and an occasional June tornado that rips off some shingles and sometimes tips over an unwary cow. Sometimes a high school scandal erupts about which girl is going to be going away for little while to resume her high school education at another school or other time. Such high school diversions have caused titters and tutters among the local townsfolks for generations. It’s none of their business, of course, but in a small town such things are everyone’s business. Damn the nosy, but that’s about all the outrage that can really be raised.
In recent years, some out-of-town land developers speckled the dusty landscape with several Homeowners Associations, little knots of elbow-to-elbow houses bound together with gallons of beige paint and criminally restrictive neighborhood covenants.
To break the monotony of the Wellington winter, homeowners Davin Armstrong and Amber Hersh put up a Christmas light display on their home, which by now has attracted every resident of Wellington at least twice. It’s not as extreme as the Christmas display once built by Clark Griswold, Jr., but it’s eyecatching and attractive and a wonderful break from the small town boredom of Wellington.
But surprise, surprise! Davin “Griswold” Armstrong is now being threatened by his Homeowners Association! The small town gossip grows anew. Remove the Christmas display immediately or face fines, humiliation, and probably confinement in the local pillory and stocks.
It seems that the HOA covenants left behind by those frisky land developers permit only three lawn ornaments per home, not the 23 that “Griswold” Armstrong has installed.
If ever there was a reason to refuse to live in Wellington, Colorado, you’ve got it. Not even the Christmas Grinch would find this town to his liking. It just doesn’t respect the rights of the individual to be different or unique. It doesn’t permit privacy to be a personal privilege. Those who live in Wellington, Colorado deserve to live in Wellington, Colorado. God Bless them all. God protect them all.
Neighbors At War: The Creepy Case Against Your Homeowners Association
> It seems that the HOA covenants left behind by those frisky land developers
> permit only three lawn ornaments per home,
According to a Coloradoan story quoted in the Privatopia blog :
Armstrong, 35, and his wife, Amber Hersh, 34, have won the town of Wellington’s Christmas lights display two years in a row, but in June, his Buffalo Creek subdivision HOA passed a rule limiting the amount of permissible lawn ornaments to three,
So the rules weren’t in the covenants as written by the developers, but created by the H.O.A. earlier this year — years after Mr. Armstrong and Ms. Hersh purchased their house.
Whether this rule change was an amendment to the CC&Rs, which usually (but not always) requires a vote of the homeowners, or an operating rule created and/or unilaterally amended by the H.O.A.’s board of directors is not stated in the story. However, anyone who knows how H.O.A.s work would bet that it’s most likely the latter.
This illustrates one of the common fallacies put forth by the apologists for H.O.A.s: the homeowners knew what the rules were when they moved in. Sometimes stated, but usually implied, is that the homeowners have not only a legal obligation, but a moral obligation to abide by the rules.
Unless otherwise prohibited by law or the CC&Rs, and there isn’t much that is prohibited, an H.O.A.’s board of directors can create operating rules that courts will enforce as a contract that the homeowner agreed to.
But saying that the homeowner “agreed” to any of this is a legal fiction (or to put it less generously, a Big Lie). It used to be that “courts required affirmative evidence of agreement to form a contract…Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it.” H.O.A. so-called-“contracts” are notorious for failing the meet basic requirements of Rational Choice Theory necessary for a free-market to work. Anyone who has even had the misfortune to be ground through our court system has learned that words like “contract” and “debt” don’t mean what most people think they do.
Professor Evan McKenzie recently observed that we have become a “Fine Print Society“:
As I go over all the bills and statements and announcements and changes to this or that plan or arrangement or contract that have flooded into my mailbox recently, it occurs to me that this is a form of concerted action. Corporate managers have collectively determined to overwhelm us with fine print. We can’t possibly read all this crap, much less meditate like some 18th century aristocrat on the implications of the content. Yet we can’t do so much as download an update to Adobe Acrobat without “signing” a contract. We are conclusively presumed to have read, understood, and agreed to every lawyer-drafted word, and yet everybody knows that none of us reads this. Not even Ron Paul–so don’t start with me. And the more of these contracts we get, the less likely it is that we will read any of them. So corporations have an incentive to send more of them and make them longer and more verbose. This is a collective decision on their part, and it is working, and they know it.
Nearly all of this stuff is enforceable, as many an HOA or condo unit owner has discovered, and it makes citizens relatively powerless. The private logic of contract law structures the relationship as individual consumer vs. big corporation with government as the enforcer of the contract, instead of citizens vs. powerful private organizations, with government as policy maker holding jurisdiction over the relationship.
The law calls these boilerplate documents “contracts of adhesion,” but the days are long past when judges were willing to throw them out because they were drafted by one party and imposed on the other, there was gross inequality of bargaining power, and there was no real assent to the terms. Now they are deemed essential to the free flow of modern commerce.
My view has always been that policy makers should be willing to step in and reform these relationships if they become predatory or destructive. But there is little stomach for that presently.
Excellent observations! All the more reason to avoid the town of Wellington, Colorado like the plague. Another town that has inadvertantly abandoned the Bill of Rights and joined the CWP. Welcome, Komrades.
Wellington, Colorado, is in Larimer County.
Interestingly, in 2006, the Larimer County Republican Party passed among their resolutions
RESOLUTION #24-HOMEOWNERS ASSOCIATIONS (HOA) ACCOUNTABILITY
Whereas… Homeowners associations are prevalent and their actions impact property values, property rights, living environment, and personal rights of the residents; and many of the HOA’s have abused their power, disobeyed the law, and generally acted in ways harmful to their members and have failed to meet their fiduciary duties:
Therefore let it be Resolved… That the Larimer County Republican Party urge the Colorado General Assembly to cause HOA’s to be legally accountable to their members such that members harmed by the HOA’s action can take pro se legal action through the court to recover damages, remove board members, and apply the same level of accountability generally expected of all levels of government.
You might want to find the delegates involved and talk to them. Obviously, this was not adopted by the G.O.P. at the state convention.
In response to the Larimer County G.O.P., the H.O.A. law firm HindmanSanchez posted on its blog (April 28, 2006) that such a resolution would change nothing:
Despite the urgent tone of this resolution, homeowners in condominium communities and pre and post-CCIOA planned communities already do have the right to enforce the Colorado Common Interest Ownership Act (CCIOA) and their governing documents by filing a lawsuit against their association for violating the law or their documents. (Confused about whether you live in a CCIOA community? Click here.) In addition, Section 123 of CCIOA provides that the “prevailing party” is entitled to the costs and reasonable attorneys fees incurred in bringing the action. Therefore, if the association loses, the court will order the association to pay the owner’s costs and attorneys fees. Owners may also collect any actual damages caused by the association’s failure to follow the law or the governing documents. (Click here for another post addressing CCIOA’s enforcement provision.)
Get that? You already have the right to sue your H.O.A. if they violate the rules. And it’s true. The problem is, which the Larimer County G.O.P. resolution would not have changed, is that there is no penalty or enforcement provision against H.O.A.s that violate their so-called-“contract” or even the law.
As Lucias Day wrote on an H.O.A. law blog on February 01, 2006 :
We don’t “trust” the states motorists to observe the speed limit in school zones or to stop for stop signs unless they know there is a good possbility of being ticketed. Why should there be any expectation [H.O.A.] board members will comply with any requirements that are inconvenient or frustrating.
It is no surprise that the industry’s lawyer-lobbyists are going to suggest litigation as the answer to H.O.A. disputes, since (1) they get paid regardless of the outcome, and (2) the law (and judges) is weighted so much in favor of the H.O.A. collective and against individual homeowners that homeowners have no realistic chance of prevailing in court.
As Evan McKenzie, a former H.O.A. lawyer himself stated on June 26, 2010:
It’s like something you would see in Nazi Germany or Soviet Russia. People think these things don’t go on. But we know they go on every day in condo and homeowners associations. These people who have no idea how to use power at all. They won’t even accept limits on their power. They don’t even know what the law requires of them, these directors. They go by what some lawyer tells them to do, which the lawyer tells them to do only because he or she knows they can get away with it. Because the only recourse you have is some civil suit. Here in Illinois, we don’t have an Ombudsman. Most states don’t. There’s nowhere for owners to turn. If the lawyer tells them “Oh, just jack ’em around. Who cares what the rules are? Who cares what the law says?” It doesn’t make any difference. The transaction costs of enforcing an owner’s rights are so great that they are hardly ever able to do it.