What Should I Know About HOAs Before I Move into the Community?
If you’re planning to move into a homeowner’s association-governed community, you may wonder, “Is there anything I should know about HOAs before I buy a home in a community governed by one?” Yes, especially if this is the first time you’ll be part of an HOA.
Below you’ll find answers to many frequently asked questions about HOAs that we believe you’ll find helpful as you prepare to move into your new home.
You cannot opt out of your HOA as long as you reside on HOA-governed property.
HOA rules and covenants “run with the land.” This means homeowners who live on HOA property are bound to the rules subsequent to the original neighborhood developer.
You must follow your common interest community’s regulations whether you knew about them when you purchased your home.
Yes. When you agreed to purchase a home in a common interest community, you agreed to pay the monthly fees like everyone else who benefits from living under HOA management.
When someone purchases a home within an HOA and signs the closing paperwork, they promise to adhere to the HOA’s rules and to pay the fees. Your HOA board can take significant measures if you don’t pay your HOA dues.
For instance, your HOA could file a lien against your property. Under Colorado law, your HOA could seek to foreclose on the lien if you fall six months behind on your routine assessment.
However, under a recently signed Colorado law, HB 22-1137, an HOA can no longer foreclose on a homeowner’s property on the basis of unpaid fines. For example, if you get fined $100 because you left your garbage cans out on Wednesday after trash pickup on Tuesday, the HOA cannot foreclose on your home if you don’t pay the fine.
The Colorado Common Interest Ownership Act (CCIOA) states that an association, without specific authorization in the declaration, may adopt and amend budgets for revenues, expenditures, and reserves, and can collect assessments for common expenses from unit owners.
How much the HOA can raise dues from year to year, however, depends on its governing documents. It can typically raise dues as necessary to meet the HOAs annual budget requirements. However, some HOAs have an annual cap on the amount an executive board may raise assessments from previous years.
If you are wondering about how much your HOA can raise membership dues from year to year, consult its governing documents to see if a cap exists.
No. Your monthly HOA dues are not part of your monthly mortgage payment. You make one payment to your bank or lending agency. You make the other payment to your HOA.
Your lender, however, will take into account your HOA fees when considering whether to give you a loan. Even if you plan to pay a whole year of HOA dues up front, your lender will still divide that lump sum into 12 monthly installments to verify your ability to make regular mortgage payments.
Some lenders will even run a whole risk assessment on the HOA itself to see how financially stable it is, whether it has room for growth, and how likely it is to keep its value.
Colorado requires that every HOA maintain a master insurance policy as coverage for property damage and legal issues. This policy works in tandem with your homeowner insurance.
HOA’s blanket insurance covers all the common areas including:
- parking lots
- swimming pools
- fitness centers
Depending on the townhouse or condominium HOA, common areas can also include:
- patios or balconies
When common areas take damage from a storm, fire, or accident, the master policy kicks in so repairs and improvements can swiftly happen.
In fact, individual HOA members can benefit from their HOA’s insurance policy.
All HOA insurance policies cover liability in the event a visitor or worker gets injured on any common areas of the property, such as stairs, sidewalks, parking lots, hallways, and recreation areas.
Insurance coverage specific to townhouses could include:
- Building coverage – walls, roofs, stairs, windows, pipes, and electrical wiring
- Property – patio chairs and tables, outdoor barbecue grills, maintenance equipment, trash cans, flat-screen TVs in common areas, and sports and recreation equipment
- Water back up – if a pipe becomes clogged or breaks and water damages the interior of the building. The HOA insurance covers repairs to all shared pipes in a townhouse or condominium
- Building ordinance coverage, which pays for the cost of keeping townhouse building standards up to code
- Some HOA insurance plans also cover crime, especially in the event that common community funds are stolen or embezzled.
The HOA’s liability for water damage to an individual’s home or townhouse or condo unit depends largely on the water damage’s origin and on the HOA’s governing documents.
Determining whose insurance should pay can be a complex discussion. That’s because a water leak or flood can originate in one area and spread to other homes and cause damage.
An overflowing toilet or a leaky pipe under a sink will make the individual homeowner responsible. If the water spreads to other condos or townhouse units because it was not contained fast enough, the financial liability could be substantial.
However, if a man-made body of water such as a pond or a swimming pool overflowed enough to saturate the foundation of nearby homes causing damage, the HOA’s insurance policy would be responsible for all repair costs.
Yes. Of course, it can. However ….
There is a process your HOA must follow to change rules or add new regulations. Every HOA has a set of governing documents describing its process.
In some HOAs, the board must notify the owners of pending changes and/or allow the owners to vote on a new rule before implementing it. As a member of an HOA, you can vote against new rules you don’t want.
One caveat, though: a new rule cannot violate the Fair Housing Act.
Generally, no. Neither HOA management nor other members may enter your property without your consent. However, there are situations when they can:
- Emergencies: HOA members or officers may enter your property to save lives, protect residents from harm, and prevent further damage during a fire, flood, gas leak, etc. These situations can pose a danger to the community at large if allowed to spread.
- Emergency Repairs: Unless it’s a true emergency repair, the HOA secretary must give you advance notice before entering your home. However, if this particular emergency could put the rest of the community at risk, the HOA can enter your home to take care of it immediately without giving notice.
- Covenant Violations: HOA officials can come onto your property to correct covenant violations you’ve been made aware of but have failed to remedy. If you’ve been repeatedly warned and fined for the violation, then HOA can get a court order to come onto your property.
Yes. That’s why Homeowner’s Associations are sprouting up all over Colorado like thistle.
Colorado Revised Statute 38-33.3-201 lays out the required steps for forming a Common Interest Community (CIC), and they are:
- Record a declaration, similar to drawing up a deed, in all the counties where the HOA or any portion of it will be located.
- Index the declaration in the grantee’s index in the name of the association and in the grantor’s index in the name of the persons executing the declaration.
- Record a plat or map for the community association. A plat shows how a tract of land is divided into lots in a county.
You can enforce them.
As a homeowner, you can enforce a covenant without an HOA. However, it depends on how your deed is structured. If you live in a community that has CC&Rs (covenants, conditions & restrictions) but not an HOA, you should:
- Discuss the issue with the homeowner who isn’t complying.
- Draft a legal document with other residents, stating the grievance.
- File a lawsuit against the offending homeowner.
It’s preferable to resolve an issue without getting the courts involved. If you talk to your neighbor about why they aren’t complying, you might find there’s a valid reason they can’t keep up with home maintenance. Or, you could find they simply don’t want to and believe the covenants aren’t binding. Once they hear words like “civil litigation,” though, they might start to see the light.
If not, you may need to get other neighbors involved. As a last resort, you can go to court. If this happens you’ll have to balance the benefit of a court requiring them to comply versus the expense of litigation.
It can be frustrating trying to work with certain types of HOA management. We know. From slow response times to warnings and fines for small infractions, to feeling boxed in by processes and limits, you just want to push back sometimes. Although we do not recommend annoying your HOA for the sake of annoying them, you do have rights afforded to you under the law.
Here are rights you have in an HOA:
Become a Stickler for Documents
You pay your dues. You’re keeping your garbage cans tucked away like they keep telling you. You’re doing your part. Start making sure they do theirs.
That starts with requesting copies of statements, especially when HOA dues are being spent. Whenever there’s an HOA meeting and money’s being allocated for this and that, ask for statements detailing where every dollar goes.
It’s a tedious hassle rounding up that information and printing it out. HOA managers hate it. But they can’t refuse you. By law, the HOA must provide detailed printouts to any dues-paying member who asks. So ask.
Put Up Solar Panels
Neighborhood aesthetics! Your HOA can require you to mow your lawn, trim bushes, purchase a certain mulch color, whatever. But the law makes clear, it can’t restrict your access to solar power or satellite TV dishes. Colorado law encourages energy efficiency. So, huffy HOA management can keep on huffing at the sight of your solar energy panes gleaming from your roof.
Your HOA probably wouldn’t approve of religious symbols or banners if it had any say in the matter. But it doesn’t. The Fair Housing Act prohibits discrimination against any political or religious ideology, and it outranks every HOA management office in the country.
If this is the way you go, it’s best to only annoy the management and not your neighbors. Signs and banners that are too large can obstruct your neighbors’ view.
Enjoy the Amenities
Your monthly dues help pay for the pool, the gym, the tennis courts, golf course, and everything else. Use them! Use them often. Use them every opportunity you can. Management and other community members will get irritated, but they can’t prevent you from using the amenities your dues help pay for.
A recent Colorado law, HB-1040, requires HOAs to “preserve the ability of owners to enjoy and use the common elements. Associations are prohibited from restricting access or enjoyment in an unreasonable manner.”
Join the Board
You have the right to join the board. Accomplishing this, however, will require patience and tact.
You must be elected to your HOA board. This requires waiting for a spot to open and then being accepted by your fellow HOA members who must vote you in. For this reason, it’s best to avoid annoying your HOA, and especially fellow residents.
You can use your position on the board to push for matters important to you and challenge existing rules. Who cares what color the mulch is? Joining the board is the perfect opportunity to air your grievances, protect your best interests, and make the community more comfortable.
Colorado law is clear as it can be on the matter of solar panels and other energy efficiency measures.
- In Rev. Stat. § 38-33.3-106.5 (1.5): “The law provides that “notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not effectively prohibit renewable energy generation devices, as defined in section 38-30-168.”
- In Rev. Stat. § 38-30-168: “… [a] covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property that effectively prohibits or restricts the installation or use of a renewable energy generation device is void and unenforceable.”
It is not impossible to successfully sue a homeowners association, but it is difficult because of the legal and financial resources many HOAs have at their disposal.
When an HOA loses a lawsuit, it faces the same penalties that any other person, entity, or organization would. Just like any of them, an HOA could — and likely would — appeal an adverse decision just to drag the process out.
If the HOA loses its appeal or chooses not to appeal a loss, then the HOA:
- could be liable for attorney fees and other costs associated with the suit, including punitive damages, depending on the gravity of the offense.
- will be required to correct any violations discovered during the lawsuit.
- could face a harmed reputation, which could lead to decreased membership and revenue.
If the compensatory and punitive damage award is great enough, the HOA board could choose to increase member dues to offset some of the costs from the lawsuit.
Generally, the side that loses the legal dispute pays the attorneys’ fees. For this reason, it is imperative to discuss all your legal options with an experienced HOA lawyer.
This is a rare occurrence, but it can happen.
Most HOAs go bankrupt because of criminal acts such as embezzlement or fraud, or just due to general mismanagement and bad luck. A critical number of homes going into foreclosure simultaneously — as happened in some places after the Great Recession — could also force an HOA into bankruptcy to resolve its debts.
So then what happens?
An HOA will usually file for a Chapter 11 bankruptcy. This would restructure the organization to keep it afloat. As part of the filing process, the HOA will disclose all of its assets, debts, income, and expenses to the bankruptcy court. Any collection efforts by creditors will be put on hold by the automatic stay upon the filing of the case.
If an HOA does go bankrupt, its member homeowners could file legal action against it due to mismanagement. On the other hand, it’s probably better to work with the bankruptcy court on a long-term plan to move the HOA forward in a way that benefits the homeowners as well.
If criminal action by one of the HOA board members is suspected, members can lobby the court for additional charges against those at fault.
Yes. If you believe an HOA board member has made false or derogatory statements of fact about you to a third party, in writing, or in recorded speech, you may be able to bring a defamation lawsuit against the HOA.
Whether you could win such a lawsuit is another question. Even if you know you’re in the right, the HOA likely has deep pockets to hire lawyers, whereas your resources could be more limited. You would also be up against your HOA’s insurance company, as well as possibly the association’s property management’s legal team.
If you can stomach litigation, have a strong case, an aggressive attorney, funds to keep the case moving, and the patience to see it through, you could recover substantial damages and attorney’s fees.
If you do not win, however, you could be out thousands of dollars in attorney’s fees and be on the hook for the HOA’s legal bills.
None of this is meant to suggest you shouldn’t pursue a claim, but you should understand the potential cost of doing so.
No. As long as you are on your own premises and the visitors are only visiting, the HOA cannot restrict the number of guests at your house.
This does not mean you can do whatever you want. For example, if you advertise your home or condo as an Airbnb for overnight guests, you’re probably violating HOA rules.
The same goes for inviting a bunch of friends to come and live with you. The HOA cannot limit the number of relatives or dependents who can live with you, but many have rules limiting how many non-relatives can live in your unit or house.
You should assume you need HOA approval.
A gazebo has no walls and cannot be considered a ‘building.’ It’s also freestanding, so it doesn’t affect the size or appearance of your home. But every HOA is different, and many have particular by-laws about gazebos, factoring in their size, the materials used to build them, and whether they will be temporary or permanent structures.
Yes. An HOA can ban pit bulls and any large breeds of dogs and other pets, even in the dog-loving state of Colorado.
The city of Denver repealed a 30-year-long pit bull ban in 2020, but nothing in that municipal ballot measure restricted any HOA’s right to ban the canines. On the other hand, nothing in the ballot measure encouraged HOAs to ban pit bulls, so it’s possible that some common interest communities in Colorado will allow them.
In 2018, a Colorado state lawmaker proposed a bill that would have prohibited HOAs and condominiums from restricting dogs based on size, weight, and breed. The bill stalled in the house.