Get 2 months of free community web site hosting from Community123.com!
Monday, January 27, 2020
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Statute of limitations and invalid policy
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
JenniferB14
(Colorado)

Posts:95


12/31/2019 12:52 AM  
*I put up a flagpole and a flag in 2014 and did not obtain ARC approval.
*ARC guidelines had specific requirements for flagpoles and stated the flags displayed on flagpoles were limited to the American Flag and state flags.
*ARC guidelines require written approval of all improvements and the ARC committee chair was well aware of the flags and flagpole.
*The association did not enforce compliance of these guidelines against me.
*Years passed, and in 2018 the association decided they did not like the particular flag I was flying at the time and sent me a violation for an unapproved flag. I have been flying different flags for different holidays since and the association has been giving me violations for these unapproved flags since May 2018 but have been unable to effectively fine me because they weren't following their policies, didn't have the right policies in effect amongst other things.

The building and improvement restriction statute of limitations in our state is 1 year and is very clear that the terms of any building restriction can not be enforced after one year. In fact from our HOA attorney's website: "No action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year...". The bottom line is I have had an unapproved flagpole and have been flying unapproved flags since 2014 but it became an issue in their eyes when I started flying various other flags in 2018.

Is it not a defense of Waiver that the association did not enforce compliance of a building/Improvement guideline when they were aware the violation existed in 2014. How can it be ok to allow unapproved flags then but not now? Is is not innappropriate due to the Statute of Limitations to violate me based on the terms of the building restriction? The use of the flagpole has not changed, and unapproved flags have been placed on the flagpole since construction.

Should I willfully conform? Perhaps, but I am angry. In October they claim they adopted yet a new flag policy however this policy also did not conform to the adoption requirements for a policy per our Declaration (ie; Lack of notice), nor did the board follow our Rule Policy for the creation of new rules and policies.

I would like input regarding the application of the SOL and the idea of waiver as it affects me specifically.


MelissaP1
(Alabama)

Posts:8922


12/31/2019 4:03 AM  
My opinion on the whole flag thing is that the entire HOA and our nation flies under the SAME flag. Why should you be anymore special to fly your own? Plus my issue is not with your right to fly one. It's the fact that many do NOT fly them correctly or respectfully to the flag rules on their own merit.


Outside of the HOA rules of flying a U.S. or State Flag etc... The act of flying a flag has it's own rules. Such as if you fly a U.S. Flag at night you must have it lit. If not, then should take it down every evening. Who is going to enforce these rules when they are NOT the HOA's?

For us, I had 1 pole at the entrance of the HOA to fly a flag. Just because we the HOA could follow the rules of flying a flag, keep it lit, maintained, and ALL be represented by the same flag.

Former HOA President
SheilaJ1
(South Carolina)

Posts:150


12/31/2019 5:15 AM  
Posted By JenniferB14 on 12/31/2019 12:52 AM
*I put up a flagpole and a flag in 2014 and did not obtain ARC approval.
*ARC guidelines had specific requirements for flagpoles and stated the flags displayed on flagpoles were limited to the American Flag and state flags.
*ARC guidelines require written approval of all improvements and the ARC committee chair was well aware of the flags and flagpole.
*The association did not enforce compliance of these guidelines against me.
*Years passed, and in 2018 the association decided they did not like the particular flag I was flying at the time and sent me a violation for an unapproved flag. I have been flying different flags for different holidays since and the association has been giving me violations for these unapproved flags since May 2018 but have been unable to effectively fine me because they weren't following their policies, didn't have the right policies in effect amongst other things.

The building and improvement restriction statute of limitations in our state is 1 year and is very clear that the terms of any building restriction can not be enforced after one year. In fact from our HOA attorney's website: "No action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year...". The bottom line is I have had an unapproved flagpole and have been flying unapproved flags since 2014 but it became an issue in their eyes when I started flying various other flags in 2018.

Is it not a defense of Waiver that the association did not enforce compliance of a building/Improvement guideline when they were aware the violation existed in 2014. How can it be ok to allow unapproved flags then but not now? Is is not innappropriate due to the Statute of Limitations to violate me based on the terms of the building restriction? The use of the flagpole has not changed, and unapproved flags have been placed on the flagpole since construction.

Should I willfully conform? Perhaps, but I am angry. In October they claim they adopted yet a new flag policy however this policy also did not conform to the adoption requirements for a policy per our Declaration (ie; Lack of notice), nor did the board follow our Rule Policy for the creation of new rules and policies.

I would like input regarding the application of the SOL and the idea of waiver as it affects me specifically.




I believe the waiver is in regards to an actual structure not a flag so your argument is open to argument. Not worth the trouble. Also most CCR’s allow for the HOA to enforce at any time. Ccr’s never grant waivers.

Again on the timing issue they see the flag has changed recently as of 2018 and then that is within the 1 year. No waiver. They can enforce.

I believe your other posts noted you have a lawsuit. You can use this flag issue to your advantage by showing the court that they are enforcing arbitrary rules against you. But check with other neighbors or is everyone else putting up the approved flags? But the HOA can use this flag issue against you for not putting in the application. Don’t show them that your angry but show the court how the HOA doesn’t get proper votes or notices and try to enforce rules that they made up.

I say put in the application, I don’t think they will deny it when they realize no rule exists.




PaulJ6
(New York)

Posts:579


12/31/2019 5:54 AM  
I'm not sure if the statute of limitations applies to handling disputes outside of court. It bans the HOA from suing you if the issue arose more than a year ago, but the HOA can still try various ways to go after you, outside of court.

Is this worth a fight over?
GeorgeS21
(Florida)

Posts:1877


12/31/2019 5:54 AM  
And, if you knew the rules, but did it anyhow?
AugustinD


Posts:2411


12/31/2019 9:08 AM  
The full Colorado statute the HOA attorney appears to be citing reads as follows:
"38-41-119. One-year limitation. No action shall be commenced or maintained to enforce the terms of any building restriction concerning real property or to compel the removal of any building or improvement on land because of the violation of any terms of any building restriction unless said action is commenced within one year from the date of the violation for which the action is sought to be brought or maintained."

From reading the statute and from experience, "action" here means "lawsuit." To me the statute is saying that the HOA has one year after it informs you of the violation to sue you in court.

Also I am not sure that the particular flag to which the HOA is objecting is an "improvement on land." The flagpole may be such an improvement, but the flagpole and the flag are two different things.

As for defending yourself with a claim of waiver or abandonment of covenants, I do not think enough time has passed (with the violation existing and the HOA doing nothing) for such a defense to hold up. Other criteria need to be met as well for an abandonment of covenants claim.

As for your other claims: Perhaps. But it seems to me all the Board would have to do is follow the correct policy to re-establish its rules on flag display. Presumably said rules are allowed by the Declaration.

Lastly, folks here at hoatalk tend not to like abandonment of covenants claims. A majority feels that, when someone buys a home with covenants on the land, the buyer is stuck with the covenants, and there is no such thing as "abandonment." I think the majority here likely reflects the feeling among most board members nationwide. Meaning I think it is likely your HOA will keep fining you until it has the legal authority to place a lien on your home, or it will take you to court by May 2019. Then the HOA and you can spend a fortune on attorneys.
AugustinD


Posts:2411


12/31/2019 9:13 AM  
Oops; my bad. The HOA first started issuing the OP violations in May 2018. The one year period to bring suit has passed. So throw out this part of my analysis. The remaining issue is whether a flag (as opposed to the flagpole) is an improvement on land. I am with Shelia in thinking it is not.
JenniferB14
(Colorado)

Posts:95


12/31/2019 9:42 AM  
The Board and I have been at war or sorts for some time now and yes, each time they have sent me violations they have been in error on their behalf as I have brought the issues to their attention. This time is no different... and yes, each time they have gone back and fixed their policy or followed their policy or created something new.... it’s all in an attempt to nail me however. There is no good faith on their part. They took the attorney on retainer so now they use their attorney regularly, who also does not seem to keep up on the policies of the HOA in order to give sound advice. This time I posed some questions to the board and management company to decide how to respond to the violation notice most recently received for my POWMIA flag. They didn’t respond and as I waited for a response the time passed to request a hearing.... so they went ahead and fined me and answered my email in the violation/fine letter.... so yet again they did not provide the due process required by law and by our policy. But at any rate it’s not abandonment specifically but waiver... that they waived the need to approve flags displayed on my flagpole when they decided they didn’t need to force compliance. In reality even my American flag is in violation because it too was never approved. Then the new rule states all flags in the unit must be approved yet ive had garden flags out for years out by the entrance to my home and never once have they sent me a violation for any of those various flags.

And yes, I have always agreed that flags are not an improvement. The Declaration indicates other than the clear list of improvements provided, that it is anything that creates a disturbance in the land itself. In real estate it is anything affixed to the land ... a flag comes and goes and one color or another all flags are substantially similar to not be differentiated.


Also the 2018 violations were in May so it has been over a year. Building/improvement statute of limitations is one year, and use restrictions are (per our attorneys website 2 years). This isn’t a use restriction because use restrictions are required to be listed in the Declaration per the law in CO and there is nothing in the declaration concerning flags at all.
PaulJ6
(New York)

Posts:579


12/31/2019 10:02 AM  
If you're in a dispute with a board- or any dispute that is or could turn into a legal dispute- you don't want to be "in the wrong" or "the bad guy/person" in any respect. You want the board always to be the one in the wrong.

I'm not sure if this dispute is worth waging, going forward, if you have other disagreements with the HOA. I'd start complying with all flag rules. I wouldn't pay any old fines, but from now on, I'd be sure to comply with HOA requirements about flags.

Save your energy and any goodwill from a judge for bigger things.

As I've stated, I despise HOAs, so this is not an approval of any HOA action; it's just what I view as guidance to help you win bigger battles.
GeorgeS21
(Florida)

Posts:1877


12/31/2019 10:51 AM  
Paul,

I don’t think this forum is for people who despise HOAs ... please check the purpose of Hoa talk.com ... note that is not ihatehoatalk.com.

If I were asking for thoughts on my interactions with HOAs, I would probably not find your preconceived position confidence inspiring. I would certainly not want to bet my money on it.
MarkW18
(Florida)

Posts:382


12/31/2019 11:17 AM  
Posted By GeorgeS21 on 12/31/2019 10:51 AM
Paul,

I don’t think this forum is for people who despise HOAs ... please check the purpose of Hoa talk.com ... note that is not ihatehoatalk.com.

If I were asking for thoughts on my interactions with HOAs, I would probably not find your preconceived position confidence inspiring. I would certainly not want to bet my money on it.



IS THIS YOUR MISSION IN LIFE?
AugustinD


Posts:2411


12/31/2019 12:59 PM  
Posted By JenniferB14 on 12/31/2019 9:42 AM
The Board and I have been at war or sorts for some time now and yes, each time they have sent me violations they have been in error on their behalf as I have brought the issues to their attention. This time is no different... and yes, each time they have gone back and fixed their policy or followed their policy or created something new.... it’s all in an attempt to nail me however. There is no good faith on their part.
Jennifer, I think your efforts to fly any flag you wanted have been well reported in the news where you are. By any chance is the POW-MIA flag a new effort to, let me be direct, get under the board's skin? Flying this flag is far less about your concerns for POWs and MIAs and far more about your wanting to tell the Board it can't tell you what to do? If you want more freedom, wouldn't it be better either (a) to campaign with others to dissolve the HOA or (b) move?

CathyA3
(Ohio)

Posts:667


12/31/2019 1:37 PM  
Posted By MarkW18 on 12/31/2019 11:17 AM
Posted By GeorgeS21 on 12/31/2019 10:51 AM
Paul,

I don’t think this forum is for people who despise HOAs ... please check the purpose of Hoa talk.com ... note that is not ihatehoatalk.com.

If I were asking for thoughts on my interactions with HOAs, I would probably not find your preconceived position confidence inspiring. I would certainly not want to bet my money on it.



IS THIS YOUR MISSION IN LIFE?




Well, he is right. The landing page for the web site says "Helping Community Leaders Since 2005" and "45,000 community association leaders learning & sharing ideas."

I haven't seen any notice that they'll kick you out if you're not a member of their target audience, and I suppose it's educational for board members and community managers to see the kinds of trouble that they may run into. But providing a platform for people who want to gripe and wail about their lousy experience doesn't appear to be the goal of this web site.
JenniferB14
(Colorado)

Posts:95


12/31/2019 2:09 PM  
Paul, sentiments well taken honestly. The big picture of all disputes is the board not following statute, policies, and other governing documents as well as acting outside of their capacity. This is honestly why I persist... with each fumble they make fawning over themselves to set me on fire they don’t follow their requirements. This new “rule” they call a policy totally missed the mark for proper adoption and in fact the adoption of rules on the unit is even in question in the first place as our Declaration defines this power and it exists for rule making on common elements only. So being introspective it does look like I keep poking the bear, but the process keeps showing the HOA’s lack of good faith and their constant inability to follow their own policies and good governance which I think ultimately is helpful to the picture of the lawsuit.

The 2018 flag issue was part of the lawsuit, because they didn’t have a policy as required by law. Really since they subsequently adopted a lawful policy that portion of the suit is mute, but they have continued to fall all over themselves over the past 2 years trying to
Control me on the flag issue... and nevermind that two other friends were flying the same flag at the same time yet no one noticed them!

And move or dissolve the HOA? Dissolution would be amazing but requires 💯. I don’t mind a fair HOA that appropriately follows their own documents and plays by the rules. Like I said... they keep trying to change the rules just to catch me. So I’m fine living within the confines of rules I know are valid.... like our covenants we agreed to. It’s the arbitrary rules they come up with to create control on specific issues that I have a problem with... and even many actually contradict the declaration. If the rule was completely valid and the SOL had not long passed on unapproved flags I would never push the issue. I do need to decide if the fight is worth it. Perhaps I request a hearing and just put it out there for them to see.
PaulJ6
(New York)

Posts:579


12/31/2019 2:11 PM  
I ignore GeorgeS21 and CathyA3. They’re welcome to post whatever they want, but I will not read their posts or respond.

JenniferB14, this a fight that I wouldn’t pursue because you’re not guaranteed to win. Maybe you will, but maybe not.

The statute of limitations would run from the date on which the grounds for a lawsuit first arose. If the HOA is imposing fines on you, it could try to sue you for unpaid fines or something like that. If it does, it could argue that any statute of limitations hasn’t run because the basis for the lawsuit- the imposition of fines and their no payment- was so recent. It could argue all sorts of things and find a way to fit within the statute of limitations.

If the HOA is letting another flag fly, then that’s grounds for you to win this, but surely the HOA is trying to get the other one (the Blue Lives Matter one) taken down as well.

And to beat a dead horse: I’ve sued people numerous times about real estate. I have a 100% success rate. I pick only the fights that I’m certain to win. I recommend that you do the same.
PaulJ6
(New York)

Posts:579


12/31/2019 3:05 PM  
JenniferB14, we posted roughly simultaneously. I see: this is part of a larger issue. Understood
SteveM9
(Massachusetts)

Posts:3516


12/31/2019 4:20 PM  
fight em, or dont fight em. doesn't matter

seems the only reason to live in an hoa is for everyone to comply with the rules and not rock the boat. if your a rock the boat type of guy, i question why you would want to live there in the first place.
AugustinD


Posts:2411


01/01/2020 7:51 AM  
I am going to try to factor in this baloney by Jennifer's board: http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/272968/view/topic/Default.aspx
JenniferB14
(Colorado)

Posts:95


01/01/2020 8:48 AM  
Augustin, this is what I mean. Everyone in this neighborhood knows what the HOA does to us. Our property is pristine (of course always in the eye of the beholder) and the average value of the homes in our neighborhood are $1M...with our immediate neighbor just selling his home for $1.3 (who moved because he hated the HOA after just building his house 9 months earlier). We value our property values as well... and on 5 acres I am flying a flag that no one cares about except the team of bullies set out to get us for being a part of this lawsuit. We LOVE where we live... LOVE this neighborhood and I have loads and loads of excellent friends here. I am determined to wait out the change and to see the change through this lawsuit. The ONLY problem with the neighborhood is the control by the retired wealthy 65+ group that feel they have ownership of this community. Lots of people have moved out of here over the years because of the HOA... nearly always the younger families often with kids. Now the tables are turning and the bulk of this community is younger families with kids (including us).

Additionally, regarding the animal thing... most recently the violations I received were complaints regarding NOISES (of farm animals) and so by default I must have farm animals and therefore have violated the amendment having farm animals. Pretty ballsy to make inferences don't you think? I'm on 5 acres covered in scrub oak by the way... no visualization of anything I have behind that scrub oak from any common element or road. In the violation I received the other day for the flag... they notated their attorney stated I was "still flying an unapproved flag" however my American Flag has never been approved either... 6 years of flying "unapproved" flags... think the attorney tripped up on that one.
AugustinD


Posts:2411


01/01/2020 9:46 AM  
Posted By JenniferB14 on 01/01/2020 8:48 AM
Additionally, regarding the animal thing... most recently the violations I received were complaints regarding NOISES (of farm animals) and so by default I must have farm animals and therefore have violated the amendment having farm animals. Pretty ballsy to make inferences don't you think?
I do.

I trust you are finding ways to stay at peace, with interests apart from the HOA, for the long haul. On hopefully serene five acres in the glorious west/southwest, the animal dispute in particular might make the battle worthwhile to me.
JenniferB14
(Colorado)

Posts:95


01/01/2020 10:08 AM  
Indeed Augustin! I love our home and our setting every day which is why it is worth the fight. We picked this land and poured love and stress into building here and raising our children here. I know I have rights and I will always stand up against the adversity to protect those rights of mine and for others. We are active in our community, in the school and with our young children. Thank you for your interest and your messages. Happy New Year
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Statute of limitations and invalid policy



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement