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JackS1
(Colorado)
Posts:44
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| 11/07/2007 10:51 PM |
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Another slightly inflamatory letter to the board who would would prefer not to hear from me or be held accountable to the law. I think it is time to go to the next level by contacting the county government and possibly the state if my requests for information are not met soon.
James W Bignell President, and the board of directors of CMR HOA
From your email of 11/3/2007 8:26:14 P.M. Mountain Daylight Time
If you have any further comments or questions present them in person or in letter at the November meeting.
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Is that an order, a command, or a request?
I don't think you would have answers to some of my questions if I only presented them at the board meeting. Some research could be required on your part to document the validity of those answers.
It is unlikely that I will be able to attend the November Board meeting. I will want a statement read at that time.
I would be glad to write and send a letter to the Board and the homeowners association members. But first I need honest answers to my previous questions so that I may address the issues in a timely manner. I choose not to work from assumptions. I am not willing to wait 5 months this time.
I am not sure which of my questions the following was supposed to answer.
2. The board can only conduct business at a formally called meeting as described in the by-laws of the association. The only exception to this is when the matter under discussion is dealing with legal mater. At which time an executive session may be called.
This tells me nothing new. It does not mean that you are prohibited from answering my questions.
I have repeatedly read and studied all of the HOA's governing documents both the original and amended versions. I have seriously studied the CCIOA and the rest of the Colorado Revised statutes. I have examined the appropriate case law. I've looked at the regulations concerning non-profit corporations I suspect that I have a better grasp of the HOA's situation than most.
Why is it that you are so reluctant to answer simple questions regarding the operations of our homeowners association?
I believe that you have a legal obligation to provide me with most but not all of them. The ones below require an immediate answer and rest of them still deserve an answer.
38-33.3-124. Legislative declaration - alternative dispute resolution encouraged - policy statement required. (b) On or before January 1, 2007, each association shall adopt a written policy setting forth its procedure for addressing disputes arising between the association and unit owners. The association shall make a copy of this policy available to unit owners upon request. I am requesting that you email me a copy now. If we don't have one why not?
Where did the original authority to amend the covenants by simple majority in October 2005 come from? I know there was some discussion of this matter back then.
I can't find anything in the original documents. I have repeatedly examined the CCIOA looking for such. I thought I would find it there. All I could find was the allowable percentages when amending was allowed by anyone other than the developer and his reserved rights. I would be a lot more comfortable with this process if you would advise me on this matter..
Does the attorney represent the BOD only? Is he on a retainer? Was he paid with HOA funds? How was he chosen? Am I allowed to communicate with him?
It would be nice to have a little more transparency and the opportunity for some honest discussion. I would welcome some dialog with the Covenant committee.
I do not have to agree with you to work with you. I would be glad to answer your questions. I think a good covenant proposal can be written to prevent certain types of housing from being allowed in the sub-division provided that any standards set meet the intentions of the covenant's preface, are not in conflict with state or federal law and are applied equally to all forms of housing. We could start with a minimum sq footage or perhaps a length to width ratio. Standards for siding and facing material can be set. Acceptable colors could be defined. We could clarify the definition of Earth Tones. Acceptable materials and colors for fencing could be defined in addition to the bar or strand spacing requirements. Standards can be set for permanent foundations and the means of attachment to them. Maintance standards could be set.
I certainly hope that we are in compliance with the following.
CRS 38-33.3-209.5. Responsible governance policies.
(1) To promote responsible governance, associations shall:
(a) Maintain accurate and complete accounting records; and
(b) Adopt policies, procedures, and rules and regulations concerning:
(I) Collection of unpaid assessments;
(II) Handling of conflicts of interest involving board members;
(III) Conduct of meetings, which may refer to applicable provisions of the nonprofit code or other
recognized rules and principles;
(IV) Enforcement of covenants and rules, including notice and hearing procedures and the
schedule of fines;
(V) Inspection and copying of association records by unit owners;
(VI) Investment of reserve funds;
(VII) Procedures for the adoption and amendment of policies, procedures, and rules; and
(VIII) Procedures for addressing disputes arising between the association and unit owners.
Source: L. 2005: Entire section added, p. 1377, § 7, effective January 1, 2006. L. 2006: (1)(a),
(1)(b)(VI), and (1)(b)(VII) amended and (1)(b)(VIII) added, p. 1219, § 7, effective May 26
38-33.3-209.7. Owner education.
(1) The association shall provide, or cause to be provided, education to owners at no cost on at
least an annual basis as to the general operations of the association and the rights and
responsibilities of owners, the association, and its executive board under Colorado law. The
criteria for compliance with this section shall be determined by the executive board.
What criteria for compliance has been set?
Please see that all of the board members receive this.
John D. Stillinger |
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TracyT
(Maryland)
Posts:220
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| 11/12/2007 10:28 AM |
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Jack,
I know how frustrated you are with this matter but you are questioning your board on why they don’t want to talk to you. Have you read your correspondence to them?
The bottom line is that your board wants to set a standard that all future homes are stick built on site. The attorney told them to include the definition of ‘manufactured homes’ in the covenant. And the board has committed to placing the matter on the ballot for vote.
If I remember correctly this what you wanted in the first place. You were concerned that the HOA could be sued for stating that manufactured homes were banned when the covenant was not clear on the issue. Now don’t expect your board to tell you but you’ve WON this battle! Your association will now vote on the matter and future manufactured homes will either be allowed or not.
I know you said you are at your winter home (curious if its in the mountains or on the beach :-) but, if you want keep ‘manufactured homes’ I suggest you make every effort to lobby support from your neighbors and other owners in advance of the meeting and/or that you attend the meeting so that you can address the association directly.
Be sure to let us know how the vote turns out. Good luck.
T
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JackS1
(Colorado)
Posts:44
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| 11/13/2007 9:55 PM |
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I am not sure frustrated is quite the right word. I don't expect to change a closed minds.
I know that my emails to them are antagonistic at times. I do it with intent and to make my point.
They are masters of obfuscation who manage to work their way around a straight answer at board meetings.
I do bait them. Letting them off the hook when they are being dishonest would violate my personal integrity.
Yes they will add manufactured home as a temporary structure to #10, using a definition that is not in compliance with federal or state law. If they chose to define it at all. They as the "Authority" want to leave things vague for them to interpret in a manner that suits their needs at the moment.
This is the board that told us in print that the words earth tone were undefinable. I found numerous definitions in various dictionaries. None of them included Bright blue roofing (Presidents home) or canary yellow VP's home.
I want to get some honest answers from a board that claims we are a Colorado common interest ownership association. They don't want to play by the rules that they have chosen.
If they can't or won't answer some of the questions I have posed to them there are some serious problems with our association being in compliance with current Colorado law.
If the BOD does not know by what law, rule, or authority our covenants were initially amended under, how can we know that new amendments requiring a 2/3 majority are even legal? These are some of the same board members that were serving in October of 2005 they should have an answer.
There are no regulations in our county regarding stick built homes, no residential building code. I could build a truly ugly home out of recycled materials, tires, dirt, straw, tree branches, and mud in our sub division and still be in compliance with our covenants. On the other hand various,obsolete, deleted, and out of context definitions of mobile home are being used to justify the boards position that manufactured homes are prohibited.
They chose to ignore federal law precedence, state case law, and current definitions.
They can't claim ignorance of law. I do my best to see to that.
It is time to gather some supporters from the membership. I want some open minded people who are willing to take a close look at these issues. They are not going to get this information from the board sanctioned news letter and editorialized minutes. Time to write an open letter to all excluding those who have asked not to be contacted.
Jack |
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JackS1
(Colorado)
Posts:44
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| 11/17/2007 12:02 AM |
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Friday, November 16, 2007. Still no reply.
I checked up on the attorney they consulted. His stated field of practice is Family law. It makes me wonder why they chose not to use someone with a knowledge of Real Estate, Contract law, and the CCIOA. I will ask but don't expect an answer.
What could this Board possibly be thinking? By refusing to answer my questions about compliance with the CCIOA and not fulfilling my requests for legally mandated information, they are placing themselves and the well being of the HOA membership in greater legal financial jeopardy.
On that note, the current lawsuit filed against the Board secretary/ treasurer, Ruth, has been expanded by the plaintiff to include everyone else in the association. This was done in response to some actions taken on the part of the BOD's attorney.
I am beginning to think that we really don't need an uninsurable HOA and would be better served by an association devoted to maintaining our roads, noxious weed control, and fire prevention. Individual owners and the county attorney have covenant enforcement rights. The CCIOA specifies what is to be done to accomplish the dissolution.
Jack |
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RobertR1
(South Carolina)
Posts:2525
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| 11/17/2007 5:01 AM |
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Jack,
It appears from your last that the board has a platefull. You speak as if this is the Boards trouble and somehow they are getting what they deserve and the situation as it exists, will serve as a club to beat with in face of more legal problems. And all this will somehow be good for your conflicts you have with the board.
Suppose that somewhere down the road you were able to prevail 100% over your board and they all were ordered ro make public statements confessing their obstinance and lack of HOA and state law and agree to all your contentions. I realize this is a wild exaggeraton but just suppose.
In view of what all else is going on, would your association be out of the woods. It doesn't sound like it.
You are openly saying the the board it going to be faced with more legal action by their administration of the concerns you are looking into. If I understand correctly, you are some six hundred miles away from their, you are pressing your concerns as a single individual, how do you get information all the time. I really don't need an answer because it makes no difference really. You are a smart, agressive, well spoken, persistant adversary and I am sure the Board recognises this. How would you like to have someone like you, after you? You are also a "right fighter" to the extreme. IMHO you have valid concerns that should and apparently are being addressed. With patience on both sides they can be resoloved.
And last, from all that you write, I don't know if it has sunk in yet that their side is also your side, and their legal problems are also your legal problems, and all legal challemges are also your challenge, and what you will gain from all this legal maneuvers is a compromise. If this other lawsuit has the weight to charge someone with a criminal offense and a jury trail may result, your efforts should be to cut the associations losses. When the shake up occurs because of this other law suit, and you and the other owners work to get you house in order, then see what you can get done about your contentions. If I was president of your board I would make every effort to get you manning one of the oars and not have you out there as a dragging anchor. |
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JackS1
(Colorado)
Posts:44
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| 11/18/2007 12:23 AM |
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Robert,
Actually it is 700 miles door to door. I was at the Colorado place until October 15. We summer there as rule. Though this year will try to get there in December also. The news letter and minutes posted on the web site are also very revealing. I have been reluctant to post the name our subdivision because I don't know if it is an acceptable thing to do. I see that I inadvertently posted the president of the HOA's name in full.
If it is acceptable I would like to post the web site link for the subdivision and a link to a another web site. On the other web site there are some photos clipped from a video showing one of the board members releasing a packrat onto the property of the owner who received a settlement from the board. He is
suing the board and now the HOA because they violated the court order received as part of that settlement. The sheriff found nails in the driveway also. This board member has been charged. Do you think she should still be on the board? Did she breach here fiduciary duties? There is no question as to her guilt. I have seen the video. She has admitted to the act. This is also the board member who went into a verbal rage when I asked her where she stood regarding #10 and manufactured homes. She told me not to bring it up to the members again. Their presence would only drive down home values in the neighborhood down. This a myth and unsupportable with fact. The studies done on this issue show otherwise. I looked them up.
Rest assured, I know their legal problems are not only mine but the rest of the home owners as well.
It appears that funds earmarked for road maintenance are being used for legal defense.
My wife is a CPA and she says this indeed the case and it was made clear at the last board meeting she attended.
A $450 dollar per owner road assessment was requested to make up the shortfall and voted down. I voted for it much to the surprise of many. After the vote count, the president tried to imply they I voted against it.
Now if I can only get the rest to understand the full implications of the current boards lack of compliance with the CCIOA and the reality of the financial obligation they could be faced with.
I am saying the potential for legal action be it civil or criminal is a real one. There will be a homeowner who's decision to purchase a lot was based on misinformation supplied by the board regarding manufactured homes being prohibited or one who was told by the developer that this was a permissible use and then was denied the right to do so. Relegating the existing manufactured homes to the status of double wide mobile homes grandfathered in under covenant #33 theoretically could adversely affect their resale value by the implied stigma of the words mobile home. If an owner thinks they have been damaged in any of these ways they could easily justify a lawsuit or other appropriate legal action.
This is an inflexible board with some very set ideas, unwilling to compromise, and incapable of upholding their fiduciary duties. They/we are uninsured and uninsurable. They seem to be incapable of honest answers and have repeatedly engaged in some rather questionable activities. If I had to guess I would say we do not have a written policy setting forth the procedure for addressing disputes arising between the association and
unit owners. Is there any other reason why they would not give me that information?
I have no doubt that I scare them. They have never been able to disprove any statement I have made. I deal in the truth and the law. I can back up my position without having to resort to misrepresentations or the use of out of context definitions. They don't like what I have to say and they do not want the members to hear it.
They don't have the courage to ask me any questions nor to answer mine.
I have repeatedly offered to help with the covenant issues. In my first open letter I offered them a face saving way to gracefully back off from their legally unsupportable position. A prudent board would have removed the false information from it's web site until the issue was resolved. Even if they admitted they were wrong and corrected the situation. We would still have some of the same problems. The risk exposure would be reduced some by correctly addressing the issue with a valid covenant setting uniform standards for all homes in the subdivision.
However as long as the homeowner who is suing them still lives in the sub division we will not be able to get any insurance coverage.
The only other thing that would change that would be the dissolution of the HOA followed by the establishment of an association to take care of roads, weeds, and fires. These are the things that the committees in place do a good job of. It was made known to me that the current plaintiff would support this and cease his legal battle.
Any one who wants to serve on this board probably shouldn't be on it. For they are either power hungry or uninformed of the risks involved.
I am in contact with some others of like mind. Now that I think of it they too predate the BOD and HOA. That would mean they too purchased their property from the developer.
some food for thought
Relevant Colorado case law:
Covenants and deed restrictions are to be construed as a whole and interpreted according to their plain language, in view of their underlying purpose. Wilson v. Goldman, 699 P.2d 420 (Colo. App. 1985).
Any doubts as to the meaning of a restrictive covenant are to be resolved in favor of permitting free enjoyment and maximum use of the land and against the restriction. Greenbrier-Cloverdale Homeowners Ass’n v. Baca, 763 P.2d 1 (Colo. App. 1988).
Jack
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JackS1
(Colorado)
Posts:44
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| 11/18/2007 1:23 AM |
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This what started the ball rolling and also led to my realization that there were more problems in the HOA governance other than this issue alone.
I sent this by email and first class to all 139 members of the HOA ten days ago. They have yet to take any action. The only acknowledgment was to say that I shouldn't have bothered the members with a board matter . The language and bold type were specifically chosen for dramatic impact.(Bold type does not show in plain text) My past experience has been that it is an effective way to get through to some of the members. This is long as it was directed at the board and I wanted them to be fully aware of the law. I also wanted any attorney they could put it in front of to get the point also.
(This was written on)
May, 19 ,2007
To the XXXXX XXXX XXXXXXX HomeOwners Association Board of Directors.
I see that you are once more trying to prevent lot owners from placing a legal dwelling on their land by the misinterpretation of covenant #10 and its original intent.
From the minutes of the XXXXX XXXX XXXXXXX HOMEOWNERS BOARD OF DIRECTORS MEETING March 29, 2007 Present: Jim XXXXXX. Gary XXXXXXXXXXX, Greg XXXXX, Greg XXXX and Ruth XXXXXX
” Once again the problem of mobile homes has come up. We have a lot owner that wants to put a mobile/manufactured home on their lot. The covenants state they are not allowed in this subdivision. While this is difficult for those that want to purchase one, the Board is charged with enforcing the covenants with no exceptions.”
This is simply not true.
The covenants do not prohibit factory built or manufactured housing. To make such a statement and to phrase in it such a manner, using the word mobile, so that it appears to be the purpose of Covenant #10, is a perversion of that covenant’s intent to regulate temporary and substandard structures from becoming places of permanent occupancy.
Covenant #10 in its original form as posted on the CMR web site:
No structure of temporary character, recreational vehicle, camper unit, trailer, mobile home, basement, tent, shack, garage, accessory building or other out-building shall be used on any parcel as a residence. A temporary camp, tent or camper unit may be used for recreational purposes but such structures may not be allowed to remain or be stored on any lot for a period of more than 9 months in a given year. Recreational vehicles may be stored longer than the 9 months per year, provided they are stored in a storage facility, i.e. barn or garage, which meets all the requirements set forth herein.
In October of 2005, no changes were made to Covenant #10, but the Membership specifically voted against a proposed covenant to ban Manufactured housing, Modular homes, and Prefabs from the subdivision. Had they been prohibited by covenant #10, there would have been no need to propose a new covenant to ban them.
Relevant Colorado case law:
Covenants and deed restrictions are to be construed as a whole and interpreted according to their plain language, in view of their underlying purpose. Wilson v. Goldman, 699 P.2d 420 (Colo. App. 1985).
Any doubts as to the meaning of a restrictive covenant are to be resolved in favor of permitting free enjoyment and maximum use of the land and against the restriction. Greenbrier-Cloverdale Homeowners Ass’n v. Baca, 763 P.2d 1 (Colo. App. 1988).
The Colorado statues cited for the justification of your opinion and those of your attorney as posted on the CMR web site and shown here below are meaningless.
COLORADO SALES TAX DIVISION STATUTES SR-30 - MODULAR OR SECTIONAL HOMES
A "modular or sectional home" is a factory-built structure (1) that is built to a customer's specifications or inventory standards; (2) that is not titled; (3) that may be approved for HUD/FHA long-term financing; (4) that complies with conventional residence building codes; and (5) that is separate from its delivery chassis.
Regulation (39-) 26-114.10.
"Purchase price" means the price to the final user/consumer as defined in C.R.S. 1973, 39-26-102(7). Factory built housing includes, but is not limited to, modular homes or sectional homes, as defined in Special Regulations entitled "Modular or Sectional Homes". Factory built housing include mobile homes as defined in C.R.S. 1973, 42-1-102(82)(b), which are used primarily for residential occupancy. See Special Rules concerning manufacturers and prefabricators acting as contractors.
August 25, 2004
Terrance XXXXXXX, XXXXX XXXXXXXXX Road 35, XXXXXX, Colorado 813XX Re: Modular Home
Dear Terry:
Pursuant to your request, I am writing to confirm our conclusion that the Cedar Mesa Ranches Homeowners’ Association’s Covenants proscribe the placement of modular homes within the subdivision pursuant to Section 11 of said covenants. The language of said section when read in light of C.R.S. Sections 39-26-103 and 42-1-102 makes clear that such homes are not allowed. However, as we also discussed earlier, I understand a few modular homes exist within the subdivision, but those that have been in place for over one year are effectively “grandfathered” due to the one year statute of limitations within which an action would have had to be initiated by the Association, a subdivision landowner or the County of Montezuma.
As always, if you have any questions or wish to discuss this matter further, please do not hesitate to contact me.
Yours very truly,
Rasure & Associates
The letter from Rasure and Associates references the wrong covenant number while discussing modular homes. Citing definitions in the sales tax code from 1973 in support of this position when federal law has rendered them moot long ago is poor way to justify this position.
Furthermore the particular statues cited in support of your use of covenant #10 to prevent manufactured housing in the subdivision no longer exist in Colorado law.
You cite Regulation (39-) 26-114.10. Colorado Statutes: TITLE 39 TAXATION: SPECIFIC TAXES: Sales and Use Tax: ARTICLE 26 SALES AND USE TAX: PART 1 SALES TAX: 39-26-114. Exemptions - disputes - credits or refunds - definitions - creation of fund. (Repealed): This section was repealed in 2004!
Regulation 39-26-103. Licenses - fee - revocation cited by Rasure and Associates has nothing whatsoever to do with Manufactured housing.
Also cited is 42-1-102 Colorado Statutes: TITLE 42 VEHICLES AND TRAFFIC: GENERAL AND ADMINISTRATIVE: ARTICLE 1 GENERAL AND ADMINISTRATIVE: PART 1 DEFINITIONS AND CITATION: 42-1-102. Definitions. C.R.S. 1973, 42-1-102(82)(b), has been deleted.
The continued posting of that misinformation on the CMRHOA web site to support the opposition to manufactured homes by some of the board members is the wrong thing to do and it is unconscionable.
This misinformation should be removed immediately from the CMRHOA web site before there are any more lawsuits. A class action would be devastating, particularly if it had the support of State and National Manufactured housing associations.
The practice of telling realtors that manufactured homes are prohibited by the covenants should cease and desist immediately.
It would be prudent to promptly notify them and the HOA membership that an error was made before a homeowner or a prospective homeowner decides that they have been discriminated against, or that the BOD has made an unfair restriction on trade and engaged in deceptive trade practices.
In light of the of the Case law and the following Colorado Statutes that are pertinent and clearly define the difference between a manufactured home and a mobile home, the CMRHOABOD is in error when using covenant #10 to restrain lot/tract owners and discourage sales to potential buyers who might wish to place a factory built home on a lot.
TITLE 24 GOVERNMENT - STATE: PRINCIPAL DEPARTMENTS: ARTICLE 32 DEPARTMENT OF LOCAL AFFAIRS: PART 33 REGULATION OF FACTORY-BUILT STRUCTURES, MULTI-FAMILY STRUCTURES WHERE NO STANDARDS EXIST, MANUFACTURED HOME INSTALLATIONS, AND SELLERS OF MANUFACTURED HOMES: 24-32-3302. Definitions. Terms: manufactured housing
12) "Federal act" means the "National Manufactured Housing Construction and Safety Standards Act of 1974", 42 U.S.C. sec. 5401 et seq.
(20) "Manufactured home" means any pre constructed building unit or combination of pre constructed building units that:
(a) Include electrical, mechanical, or plumbing services that are fabricated, formed, or assembled at a location other than the site of the completed home;
(b) Is designed for residential occupancy in either temporary or permanent locations;
(c) Is constructed in compliance with the federal act, factory-built residential requirements, or mobile home standards;
(d) Does not have motor power; and
(e) Is not licensed as a recreational vehicle.
(24) "Mobile home" means a manufactured home built prior to the adoption of the federal act.
Colorado Statutes: TITLE 4 UNIFORM COMMERCIAL CODE: ARTICLE 9 SECURED TRANSACTIONS: PART 1 GENERAL PROVISIONS: 4-9-102. Definitions and index of definitions. The definition of "manufactured home" borrows from the federal Manufactured Housing Act, 42 U.S.C. §§ 5401 et seq., and is intended to have the same meaning.
Colorado Statutes: TITLE 30 GOVERNMENT - COUNTY: COUNTY PLANNING AND BUILDING CODES: ARTICLE 28 COUNTY PLANNING AND BUILDING CODES: PART 1 COUNTY PLANNING: 30-28-115. Public welfare to be promoted - legislative declaration - construction.
(3)(a) (I) "Manufactured home" means a single family dwelling which:
(A) Is partially or entirely manufactured in a factory;
(B) Is not less than twenty-four feet in width and thirty-six feet in length;
(C) Is installed on an engineered permanent foundation;
(D) Has brick, wood, or cosmetically equivalent exterior siding and a pitched roof; and
(E) Is certified pursuant to the "National Manufactured Housing Construction and Safety Standards Act of 1974", 42 U.S.C. 5401 et seq., as amended.
(II) "Equivalent performance engineering basis" means that by using engineering calculations or testing, following commonly accepted engineering practices, all components and subsystems will perform to meet health, safety, and functional requirements to the same extent as required for other single family housing units.
(b) (I) No county shall have or enact zoning regulations, subdivision regulations, or any other regulation affecting development which exclude or have the effect of excluding manufactured homes from the county if such homes meet or exceed, on an equivalent performance engineering basis, standards established by the county building code.
(II) Nothing in this subsection (3) shall prevent a county from enacting any zoning, developmental, use, aesthetic, or historical standard, including, but not limited to, requirements relating to permanent foundations, minimum floor space, unit size or sectional requirements, and improvement location, side yard, and setback standards to the extent that such standards or requirements are applicable to existing or new housing within the specific use district of the county.
(III) Nothing in this subsection (3) shall preclude any county from enacting county building code provisions for unique public safety requirements such as snow load roof, wind shear, and energy conservation factors.
(IV) Nothing in this subsection (3) shall be deemed to supersede any valid covenants running with the land.
CMRHOA does not have a valid covenant restricting manufactured housing.
In 1999, before I purchased my property, I carefully studied the covenants. I specifically asked Mr. Christmas, the original developer, if manufactured housing was permitted. I was told," yes it was." I made very certain of this prior to my purchase of lot 81. The supplier of my home, Don Etnier of Residential Building Systems, informed me that this subdivision was to have mixed types of housing, which included manufactured homes. Fred Johnson was living in a manufactured home and doing sales in CMR. His was one of the earlier homes here. He advised me of the same information, namely that manufactured homes were allowed in the subdivision.
The original developer is the one who files the covenants with the county and adds any covenants above and beyond the county required ones (as reiterated in the recent correspondence to homeowners). The developer is the HOA until homeowners establish one. The developer is the one qualified to define the intent of a covenant. To second-guess them, years later, in order to support an unfounded position on Manufactured housing is presumptuous and in error.
Taking all of the above into consideration it is clear that lot/tract owners have a right to place manufactured homes on their property in CMR and have always had that right.
CRS 30-28-115 makes it clear that they can be regulated by the HOA within certain standards. But you need a valid covenant with some very specific language, documented facts to support it and the support of the owners if you wish to ban them outright.
Once again we would like to remind you that in October 2005 the majority of homeowners voted against a covenant change banning manufactured homes, prefab homes and double wide mobile homes. The outcome of this vote is a de facto statement that they are allowed.
We realize that this may be upsetting to some CMR homeowners, but it is time to recognize the truth and the law.
Jack (John D.) Stillinger & Dorothy Ann
Lot #81, XXXXXX Road K.3 (XXX) XXX-XXXX
XXXXXX Colorado 813XX jds918@aol.com
As it turns out the use of majority of homeowners voted against it was incorrect. It simply did not pass.
Now my follow up letter
Don't Shoot the Messenger
Clearly my point was missed, particularly by the anonymous female CMR resident who made the threatening call from the pay phone by the Aramark offices. I am not advocating that there be more manufactured homes in the CMR.
I have no vested interest in presenting anything other than the truth by way of verifiable facts. I don't sell manufactured homes nor am I in anyway affiliated with the industry.
What I am saying is that many of you have been have subjected to a serious bit of deceptive misrepresentation. Point blank, you were lied to by people who should have known better.
I would be extremely angry to discover that I purchased property in CMR with the assurance that factory built, manufactured homes were prohibited by the covenants, only to find out otherwise.
If you read and understood the legal information I provided to you, it should be clear that any lot/tract owner has the right to place manufactured housing on their property. No matter how much some of you are opposed to them for whatever reasons, it is a fact.
We spoke with the county assessors office last week and were told that there are currently seven manufactured homes in CMR. The very first home in CMR, built in 1999, was a manufactured one. This is precedent setting. How could that have happened if they were not allowed?
If you question the validity of my facts, look them up or consult your attorney, but whatever you do, do not rely on the BOD supplied information on the CMR web site regarding mfg. homes as it currently stands. It is flat out wrong. It is a useless attempt to support an unsupportable position.
I provided the link below to the BOD prior to Oct 2005. It makes it very clear that in a court of law covenant #10 cannot be used to ban manufactured homes.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2000app%5Cct031615&invol=1 They cannot claim ignorance.
If a realtor tells you "no manufactured homes are allowed in CMR", they may have received a letter from the board. Ask them how they got that information and the basis for it.
We don't need more lawsuits taking money away from our roads. Suing the Board is like suing yourself in this case. We don't have an insurance company to collect from and the Board has no insurance company to pay for their defense. We would only deprive ourselves, the homeowners.
In the case of a lawsuit, a plaintiff typically has the burden of proving each of the following elements: (1) the defendant made a representation of one or more material facts; (2) the representation was false when it was made; (3) the defendant knew the representation was false when the defendant made it, or defendant made it recklessly (i.e., without knowing whether or not it was true); (4) the defendant made the representation with the intention that the plaintiff rely upon it; (5) the plaintiff relied upon the representation; and (6) the plaintiff suffered damages as a result of the reliance.
Make your opinion known. Attend the next board meeting, if you can, on Thursday, May 31, 2007 at 7:00 PM. Let the Board and the members know your stand on this matter, but be prepared to back your self up with facts. Conjecture and opinions based on hearsay have no value.
Jack (John D.) Stillinger and Dorothy Ann Lot 81
.(The best attended board meeting ever)
Now having read all of that and maybe checking out the link, do you really believe that this was presented in whole to a knowledgable attorney who then checked the citations? Could he possibly have been asked does #10 prohibit manufactured homes from being placed in the subdivision. Or was he asked some other question, such as will this covenant stand as written? Could he really have missed the stated legislative intent of the definition he provided?
I really question the ability of this board to put forth a proposed new covenant that will hold up if taken to a court of law.
Jack
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JudithC
(Virginia)
Posts:252
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| 11/18/2007 5:37 AM |
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Jack,
I particularly liked the start of your letter as somehow your quote of the covenants made it seem that clearly they were referring to recreational types of homes, not manufactured ones. Everything in the covenant refers to recreation.
The attorney? It truly is a short and not very well written "opinion" -- I would guess someone had a buddy who said they would write up a supporting opinion for the board. Does your association have a regular attorney? In one of your posts I got the feeling this one was not the usual one.
BTW, I did extract the name of the association from all of that and went to the website. To me, it seems that they are within the bounds of reason to post what they did which was the attorney's letter and statute that he liked -- it may be incorrect, or perhaps better said irrelevant to the argument, but I would think the person who would not like it posted was the attorney. It is "fact" as far as the association goes.
I was shocked to see that no one used the message board. Your community seems to be even more apathetic than mine, or are posts removed from it? There doesn't seem to be a post this entire year, covenants there were no posts for a couple of years. That is one dead community to be having all the problems you state. I would think the board member who let loose a packrat on someone's property should be arrested.
Judy |
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RobertR1
(South Carolina)
Posts:2525
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| 11/18/2007 6:24 AM |
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Judith,
Great post and well presented. You are to be commended for the time and effort you put in. |
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JackS1
(Colorado)
Posts:44
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| 11/18/2007 7:51 PM |
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Oops, after rereading I see that I missed XXXX out the CMRHOA's full name.
The message board is a big surprise to me!!! The Message board has been non-functional for quite some time. That is why there are so few posts. It has been unavailable since July of 2006.
At the time of it's inception the best available connection speed was a 24 K dial up.
The web site was recently updated It appears as though the message board just became available a few days ago. I will have to look and see if we were given any notice of this. Of course that irrelevant, not to mention inaccurate, information is still there. It is nice to know that a forum is available. Unfortunately the bulletin board is full of spam for drugs and porn, any meaningfully discussion would be lost in the clutter.
seeing as how the cat is out of the bag, here is the link for the rest of you to cut and paste.
http://cedarmesarancheshoa.org/
You should also take a look at this one. The pictures of the local wildlife including the packrat freeing BOD member are very interesting. http://cedarmesaranches.org/ It would be nice if you signed the guestbook on this one.
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Posted By JudithC on 11/18/2007 5:37 AM
Jack,
I particularly liked the start of your letter as somehow your quote of the covenants made it seem that clearly they were referring to recreational types of homes, not manufactured ones. Everything in the covenant refers to recreation.
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My quote of covenant #10 ( #11 originally) was copied directly from the covenants as written. I did a direct cut and paste from the covenant as posted on the web site. It is all there in it's entirety. So it is not a matter of some how I made it seem. It is how the Developer wrote it into the original documents.
It was the only covenant that mentioned/uses the words "Mobile Home" prior to October 2005. #33 uses the words mobile home regarding the grand fathering of the existing ones. (legally there aren't any). Factory built or manufactured homes are never mentioned in any of the original documents.
If you see it the way you do that is because that is how it was written. Which brings us right back to the case laws.
Covenants and deed restrictions are to be construed as a whole and interpreted according to their plain language, in view of their underlying purpose. Wilson v. Goldman, 699 P.2d 420 (Colo. App. 1985).
Any doubts as to the meaning of a restrictive covenant are to be resolved in favor of permitting free enjoyment and maximum use of the land and against the restriction. Greenbrier-Cloverdale Homeowners Ass’n v. Baca, 763 P.2d 1 (Colo. App. 1988).
My position has always been that this does not ban manufactured homes from the sub division and that it is disingenuous for the BOD to contend that it does. It says nothing of the sort. The very fact that they keep trying to support their position by using definitions for mobile home that could be construed to include manufactured homes is troubling to me. I suppose that is because the current law is very clear on the difference between the two. Not only do they chose to ignore that fact by they continue to try and deceive the membership by getting an opinion that has nothing to do with the real question. That being does this covenant ban manufactured homes from the sub division.
From my letters you can also see that I have always been aware that this was a problem for all of the HOA whatever side of the issue they were on.
I guess it all comes down to the matter of a BOD that is unable and unwilling to meet its fiduciary duties, because its members are incapable of suspending their prejudices even when faced with facts.
Jack |
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