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Covenant misinterpretation

Started by JackS1 • 73 replies • 14645 views

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JackS1 (Colorado)
Posts: 45
Posted:
Location: Montezuma County, Colorado

10. 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.

Our BOD maintains that this Covenant gives them the right to ban Manufactured Homes from the subdivision. I say otherwise! I base my opinion on a through reading of the Colorado Revised Statutes ,Case law and Federal law.

Some facts. This is the only use of the word mobile home in the covenants. Manufactured housing/homes are never mentioned in any context. They have been using a definition of mobile home that isn't even on the books anymore and a letter from an attorney that references modular homes also citing repealed code.

Though fully advised of the case law ,Federal and State statues pertinent to this issue they refuse to change their position. They just found some new definitions in the sales tax code and the consumer protection act to justify their positions. I started on this issue with them in September of 2005 during a failed attempt to revise the covenants to ban pre-fab, manufactured, and modular housing. They certainly can't claim ignorance.

In the past they have sent letters to the local realtors telling them no manufactured homes allowed and the same position is posted on the web site along with the bad definitions and the irrelevant attorneys letter.

They recently posted this in the minutes. "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"

I purchased my 10 acre lot from the original developer after a careful reading of the covenants. He told me it was to be a mixed development and that a nice double wide was fine. The first home placed in the subdivision(1999) was a manufactured one. Currently there are about 60 homes of which 7 are manufactured. Mine is one of them. I was here long before the board and HOA came into being. There are also 3 "earth ships", made of old tires and rammed earth, at least one straw bale and mud home, and numerous log cabins. Most of the site built homes have not been subjected to any building codes. There wasn't one in the county until mid 2006.

The Danger: No liability Insurance. Coverage was lost (non-renewal) after a member filed and won a judgement against the HOA. Many lot owners bought their properties after being told that there were no factory built homes allowed. They should be thoroughly irritated. Others bought with the assurance that they could put a mfg home on site.

The Problem: No amount of factual information and citations of law will convince them to remove this misinformation from the web site and advise the realtors that a mistake was made due to bad legal advice. It seems to me that they have a duty to remove false and misleading information. They are placing the association in financial jeopardy.

The Dilemma: How can I get them to stop their bad acts? They have chosen to ignore me. I sent all of the 129 members a copy of my open letter to the board by email or first class. The BOD response was that this should have been a board matter only.

I did succeed in getting a very large turnout for the May 31,2007 board meeting by sending a follow up letter to the members. At which time the board presented it's new set of out of context definitions. I did get a verbal statement that they would again consult an attorney and have him look at my argument. So now it is July 7 and still no response or changes have been made.

All advice will be appreciated

Jack
JudithC (Virginia)
Posts: 253
Posted:
You don't consider a double wide to be a mobile home?
JackS1 (Colorado)
Posts: 45
Posted:
Double wide what?

Colorado Statutes below are the basis for my opinion regarding definitions of Mobile Home Versus Manufactured Home. Edited for some brevity

 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.
 
Below is a bit more current and precludes homes that would be considered single wide manufactured homes. Clearly defined and not a temporary structure.

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

My point being that we don't have a valid covenant.

There is also the ambiguity issue. Which was the reason for my seemingly smart ass reply.
To be addressed later if needed
Jack
RogerB (Colorado)
Posts: 5,067
Posted:
Jack, you succeeded in getting your neighbors and the Board to listen to your argument and seek another legal opinion. So they are not ignoring you. Nor did you say they are asking you to remove your double wide which I consider a mobile home.

You ask: "How can I get them to stop their bad acts? They have chosen to ignore me." Perhaps you should consider yourself lucky. The bad act could be not enforcing the restriction by not requiring you to remove your double wide mobile home!
RogerB (Colorado)
Posts: 5,067
Posted:
Jack, thanks for posting definitions on manufactured homes. However, the Covenant restriction is on mobile homes. I believe you said you owned a double wide which I presume is a motor home not a manufactured home. Do you have similar references to prove your double wide is not a mobile home? For example is your double wide able to be moved without disassembly (except for such things as removing skirts and jacks).
JudithC (Virginia)
Posts: 253
Posted:
Jack, to answer your question about my double wide reference, in your original post you state that:

"He told me it was to be a mixed development and that a nice double wide was fine."
MicheleD (Kentucky)
Posts: 4,491
Posted:
By my reading I also would consider a "double-wide" a mobile home, and not a "manufactured home," according to the definitions you listed. The manufactured homes that are defined in the above appear to me to be identical to site-built homes with the only exception that they are manufactured, in whole or part, at a different location. Once a manufactured home is installed on the site, it is a "permanent" residence, that should appear to even the casualist of observes as being undistinquisable from the other site-built homes in the subdivision.

A "double-wide," no matter how nicely made is still a "temporary" structure, in that you can knock out their "foundation," re-attach the wheels and away you go.

We have 2 "manufactured" homes in our neighborhood. In fact, our backyards butt up against each other. Both are 2-story structures and were brought in 4 sections and permanently "sited" on top of a basement. They also have attached garages. One is brick exterior, the other is grey siding, and unless you saw them put together you would have no way of identifying them as the only two "manufactured" homes in our development.

The reading of the definitions above convince me that this is the sort of "manufactured" home they are defining and the definitions themselves clearly distinguish them from what we used to call "mobile homes" (of which a "double-wide" is).

JackS1 (Colorado)
Posts: 45
Posted:
The time limit to enforce covenant is only one year in Colorado. I predate the current HOA. At the time I placed my home. The developer was the authority (declarant) in effect he was the HOA.

I should have been less slangy in my use of double wide and included the full statement. Manufactured homes are to be allowed providing they are double wide's.

I do not have a double wide mobile home. By Federal and State definition, I have a manufactured home. It is a 2001 model. Please review previous post

Then again this covenant did pass in October of 2005 #33. All double-wide mobile homes that are currently on lots or tracts in the XXXXX XXXX Ranches Homeowner’s Subdivision that were there before January 1, 2003 are grand fathered in and are exempt from the no double-wide part of these covenants. This does not preclude the enforcement of the no double-wide part of these covenants in the future.

It is poorly written and references a non-existent part of the covenants.

(24) "Mobile home" means a manufactured home built prior to the adoption of the federal act. That would be in 1974.

The state and county regard my home as real property and tax it as such. It is on and welded to a permanent foundation of poured in place concrete columns extending four feet into the ground. The titles are purged. No axles or tow bar. It fully meets the standards set forth in CRS 30-28-115. It is 28 by 48 feet. Before remodeling it was a 3 bedroom 2 bath. It is of 2 x 6 construction and insulated to 150 degrees below zero Fahrenheit. It has an attached insulated three car garage and office for my wife. Office alone is 22 x 16 feet. A deck with hot tub and an enclosed stuccoed courtyard. This is no mobile home. Kitchen has granite counter tops and cherry wood cabinets. Master bath was a finalist in the Moen show us your style contest. Living room and dining room have cork flooring. Every room was stripped to the walls and subfloor. Every piece of trim work has been replaced. Carpeting is of top quality as is the laminate flooring. My wife and I did a great deal of the work. I know from personal observation that our craftsmanship is far better than we have seen in many site built homes.

There are site built homes in the subdivision that look so much like manufactured homes in configuration that I had to check with the assessors office to determine their origin.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
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)
 
When I look at this covenant, I see the phrase, No structure of temporary character, followed by the types of structures. When I read it as a whole I can only see it's intent as to prevent them from being lived in full time. I don't see a ban on manufactured homes

COLORADO COURT OF APPEALS
March 16, 2000
No. 99CA0044
Is worth looking at it presents a very similar situation to the one exsiting here. It dicusses the ambiguity issue. It can be found at Findlaw.com

I will be travelling for the next 11 days and may be unable to reply to comments

Jack

MicheleD (Kentucky)
Posts: 4,491
Posted:
One can live in a temporary structure, a mobile home, for quite a long period of time. I would consider in reading that as a ban on them.

Almost all mobile homes are "manufactured," while not all "manufactured" homes are mobile homes.

So you have removed the axles and welded/attached to concrete, with those and various other configurations you have done, you may have managed to move your home's technical description from a "mobile" home to a "manufactured" home per the discussion.

But that the state considers it real property and taxes it as such doesn't mean much, they do the same to mobile homes, and automobiles, for that matter. But the issue isn't whether it is a "real" home, but whether mobile homes can be allowed, and I don't see that they are. Manufactured ones can be I believe, but not mobile homes, trailers, if you will.

But since you say yours is grandfathered in and all such other stuff, I'm confused as to what you're asking of us?

If it was whether we are of the opinion it bans mobile homes, my answer was, the way I read it, it does.

Otherwise, I'm sure you have a very nice home and I'm guessing that you'll be able to live there for a considerable amount of time.

JackS1 (Colorado)
Posts: 45
Posted:
I would say all mobile homes were manufactured. I would use the past tense when referring to them. They have not been manufactured since 1974. Colorado Title 24 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. (24) "Mobile home" means a manufactured home built prior to the adoption of the federal act.

My home has never been a mobile home. It is a factory built manufactured home that was transported to it's current location with the full intention of permanency.

The question. Taking into consideration all of the previously supplied information, Is this covenant #10 sufficient for a BOD to ban all forms of manufactured homes from the subdivision or is it's true intent to keep temporary structures from being used as permanent dwellings by a lot owner.

I fully agree with the statement that it bans mobile homes from use as a permanent residence.

I care about this matter because a small group of people in power are misusing this covenant to support their prejudices against a particular type of housing that was present and legal in the sub division before their arrival. By posting their position on the web site and telling realtors that mfg homes are not allowed here they may be unduly influencing the market values of the properties.

The continued use by posting on the web site of non-existent, repealed , and deleted laws to support their position exposes all of the HOA members to potential financial loss. That kind of posting could be considered as fraud. Remember no Insurance protection. I believe that they are breaching their fiduciary responsibilities by refusing to act on this matter in prompt fashion. It would be very easy to remove this misinformation from the web site until the matter is properly clarified. They have chosen not to do so.

Jack

TracyT (Maryland)
Posts: 228
Posted:
Um, aren't all homes manufactured? Either at a factory or on site?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Good one there Tracy! However, not every home has axles underneath them. If it's got axle's it's mobile. If it took axles to get there, it might be mobile too! Except for house moving of course! Of course if you see my house moving, don't knock!
Former HOA President
JackS1 (Colorado)
Posts: 45
Posted:
Tracy, you bring up an interesting point. Factory built is a better term than manufactured. Stick built is often used to mean site built. Site constructed homes might be a better term.

At one time the BOD tried to say that if it came in on wheels it was a mobile home. Then the issue of the salvage home previously mentioned was brought up along with the lumber delivery vehicles having wheels. Now they are using obsolete definitions for mobile homes found in the sales tax code 1973 and the consumer protection code.

So we again come to the ambiguity issue. The following was taken directly from COLORADO COURT OF APPEALS No. 99CA0044

we first consider whether the meaning of the term "mobile home" as used in the original and amended restrictive covenants is ambiguous as to whether it includes all types of factory built housing. We conclude that it is.

Interpretation and construction of covenants is a question of law which we review de novo . In the absence of contrary equitable or legal considerations, protective covenants that are clear on their face must be enforced as written. Rossman v. Seasons at Tiara Rado Associates , 943 P.2d 34 (Colo. App. 1996).

Rules of construction for determining whether provisions of a document are ambiguous are applicable to protective covenants. Hallmark Building Company v. Westland Meadows Owners Ass'n, Inc. , 983 P.2d 170 (Colo. App. 1999).

A written instrument is ambiguous when it is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of a term. Ad Two, Inc. v. City & County of Denver , 983 P.2d 128 (Colo. App. 1999)( cert. granted Sept. 13, 1999). .......

There are indeed differences in the construction of trailer homes and mobile, modular, manufactured, and Department of Housing and Urban Development (HUD) sanctioned, and Uniform Building Code (UBC) sanctioned mobile homes. However, various bodies of law use the terms interchangeably. Therefore, we conclude that the term "mobile home," as used in the covenants here, is ambiguous. See State of Colorado, Division of Housing, Brief History of Colorado Homes That Were Built in a Factory , (1998)(for the most part, people use the terms mobile, modular, manufactured, HUD, UBC, and trailer interchangeably when referring to homes built in a factory).

For instance, in 1988, the Federal National Mobile Home Construction and Safety Standards Act was renamed the Federal Manufactured Housing Act. 42 U.S.C. §5401, et seq. (1988). In Colorado, from 1931 through 1982, wheeled vehicles having a residential purpose were referred to in the statutes as "trailer coaches" and "mobile homes." See , e.g. , Colo. Sess. Laws 1931, §1 at 485. In 1983, the General Assembly abandoned use of those terms and replaced them with the phrase "manufactured home" throughout what is now known as the "Title to Manufactured Homes Act," found at §38-29-101, et seq. , C.R.S. 1999. See Colo. Sess. Laws 1983, ch. 417, §38-29-102 at 1448; Colo. Sess. Laws 1989, ch. 122 at 712.

-----------------------------------------------------------------------------------------------------------------
With no written definition of mobile home, manufactured home or factory built home in the covenants and with contract law applying to covenants of this sort, How can this restrictive covenant possibly be used to ban Factory built/ manufactured homes from the subdivision.

Jack
TracyT (Maryland)
Posts: 228
Posted:
Melissa: OMG LOL! I can't stop

Jack,

I must say that you do have interesting types of homes in CO . . . anyway

According to #10 of your covenants, IMO, does not give the BOD authority to ban “manufactured” homes as a permanent residence. However, you posted #33 which does ban future “double-wide mobile homes”.

Now you have also posted “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.” This appears to conflict with your covenant and if it’s current law then it would take precedence over your covenant.

How can you stop their bad acts? Are you sure they aren’t just trying to set some standards that will protect property values? Hopefully, they’ll get competent legal advice. It doesn’t seem as vote to change the covenant would be necessary if it is state law takes precedence. If they still won’t act you can petition and vote to replace the BOD (some or all). Remember that you will need volunteers to fill their positions. Your covenant should define the procedure - follow it to a tee!

Good luck!
JackS1 (Colorado)
Posts: 45
Posted:
#33. All double-wide mobile homes that are currently on lots or tracts in the XXXXX XXXX Ranches Homeowner’s Subdivision that were there before January 1, 2003 are grand fathered in and are exempt from the no double-wide part of these covenants. This does not preclude the enforcement of the no double-wide part of these covenants in the future.

There are no double wide mobile homes in the subdivision. There are 7 factory built
( manufactured homes)by current definition. As such all are of a double wide(two component construction). There are also kit homes and Insulated structural panel homes.

There are no double wide parts in any of the covenants to be enforced. This was added at the same time the BOD was trying to get a very broad ban on any type of factory built home. It references the covenant that did not pass.

Standards to protect property values are indeed the purpose of many covenants running with the land.

In all of my research, I could find no indication that Manufactured homes as currently defined by 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.
have a negative impact on the values of adjacent property.

I found a great deal of information to the contrary.

Land-Use Restrictions
In addition to economic factors that favor location of
manufactured homes in rural areas, land-use policies
also tend to limit the ability of both individuals and
developers to place manufactured homes in many
urban and suburban locations. Indeed, manufactured
housing often meets strong resistance from neighborhoods
and towns. This is due to a combination of aesthetic
concerns, apprehension over increased demand
for municipal services, negative attitudes due to the
presence of older trailer parks, and fears that manufactured
housing will negatively affect the value of
neighboring site-built homes. Existing empirical
studies suggest that concerns about the adverse implications
of manufactured housing are often exaggerated.
In particular, several studies of local housing
price data uncovered no noticeable effect of manufactured
homes on the sales prices of neighboring properties
(Warner and Scheuer 1993; Stephenson and Shen
1997; Hegji and Mitchell 2000). Like all affordable
housing developments, the Not In My Back Yard
(NIMBY) mentality may not be explained by any economic
rationale, but is rather grounded in stubborn
social perceptions of low-income families and communities.

Anyone who can afford a lot in our subdivision is not low income.

Jack
MicheleD (Kentucky)
Posts: 4,491
Posted:
I, for one, do not subscribe to your interpretation that any manufactured home is not a "trailer" or "mobile" home.

While it is true that all manufactured homes are not "mobile" homes, all "mobile homes" are "manufactured" homes.

While certain "manufactured" homes are allowed in our subdivision (in fact, we have two that are virtually and literally indistinguishable from site-built homes, a "tailer" or "mobile" home would clearly be markedly different in appearance, regardless of how well someone would have "added" on to it with site-built expansion, and would still not be allowed, double-wide or not.

I could be wrong, I probably am, but what I THINK I am reading in your posts is that you have what started out in life as a "mobile" home - a "double-wide" - that you have "enhanced" with custom additions that you built on site, including the fact that you attached the structure to a foundation. And so you want to call it a "manufactured" home (which I agree, technically, it is), rather than what it started out its existence as, a double-wide trailer.

Now, that might be fine for your subdivision, and you may be grandfathered in as far as I can tell. But to then carry the argument that "double wides" are "manufactured" and not "mobile" homes so should be allowed, I think, is stretching the interpretation. But that's just me; I'm not on your board, I'm not part of your legislature, and I have no idea what your home really looks like, or looked like when it was brought to your subdivision.

A developer here in Kentucky can NOT put up a "manufactured home" park next to a site-built subdivision and not be held to the zoning restrictions for mobile homes.

In fact, while mobile home parks used to pop up like weed infestations across the suburban/rural landscape, local land use entities are putting a stop to them, and simply calling them "manufactured" does not change that.

A Rose by any other name - - -

JackS1 (Colorado)
Posts: 45
Posted:
The original question being is this covenant sufficient to ban manufactured homes from the sub-division?

10. 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

The answer to the question depends on:

1. The intent of the covenant. No temporary structures to be used as a residence.

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).

2. The definitions of the structures named.

Both the federal government and the state of Colorado clearly delineate between mobile homes and manufactured homes. The covenants do not provide a definition of either. Therefore they are the definitions that should be used.

I will clarify again my home was never a mobile home by legal definition. It is a 2001 manufactured home. The grand fathering is irrelevant to me. It does not apply to anything I own.

[Âś22] Recently, a Colorado court considered whether double wide mobile homes and manufactured homes were trailer houses. Tucker v. Wolfe, 968 P.2d 179 (Colo. App. 1998). The Colorado court determined a trailer house to be a temporary and transient structure, mounted on wheels and axles, capable of being moved, requiring a motor vehicle title if transported and whose main characteristic is mobility. Id. at 181. Although a double wide mobile home may be moved from place to place, the court discounted the notion that alone was sufficient to consider it a temporary structure, finding mobility secondary to the primary function of providing a permanent dwelling. Id. at 182. That court stated, "[T]he greater sense of permanency and residential character attributable to double-wide mobile homes and manufactured housing distinguishes them from the commonly understood meaning of trailer houses." Id. at 183.

Note the use of the term double wide mobile home. By the States own definition can only refer to pre-federal act (1974) built double wide's hence the additional use of the words, manufactured homes, to add clarity.

I am not interpreting any thing, I am using the legal definitions as they currently stand.

I placed my home here in 2000.

The biggest difference between my home and the site built ones located here: 1. Mine has a shallower roof pitch than some of them. 2. Mine is built to a rigid code and was th roughly inspected during its manufacture and construction.

Montezuma county has no building code!

Personally I think the old mobile home park ghettos are ugly and the pre 1974 homes are of poor quality and grossly energy inefficient. I am not going to go into the affordable housing issue for which they fill some of the need.

The real problem is that our uninsured HOA and BOD are at great financial risk by continuing to post and disseminate misinformation by way of the mail and on the web site as to the permissibility of manufactured housing in our subdivision. It would be prudent to cease and desist until they have studied the law and gotten a valid and reasoned legal opinion from a knowledgeable attorney.

Jack

MicheleD (Kentucky)
Posts: 4,491
Posted:
I think "temporary character" and "temporary structure" are not necessarily one and the same.

A "mobile home" may or may not be intended as a "temporary structure" in that it's intent for use is to be used until it is falling apart, I would guess, but people who live there consider it somewhat "permanent." However, it has an undeniable temporary "character" by virtue of what it is.

"Mobile homes" do have a strong temporary "character" in that they are mobile for one and they are also not nearly as durable as a site-built home.

But, again, I have no idea what yours looks like nor what you intend to obtain from those of us on this board.

I keep reading what you're saying and still keep coming up with a different interpretation than you do, but that could also be because I do not share your frame of reference.

I think the "intent" of the restriction was to communicate that only stick-built homes are allowed on the sites.

But that's not what you want to hear and I don't know, based on what I don't know about your area, how else I could come up with any other.

Sorry.
JackS1 (Colorado)
Posts: 45
Posted:
You are right when you say " "temporary character" and "temporary structure" are not necessarily one and the same." Contract law really is about the concise interpretation and definition of the words used.

I would have no major objections to a properly written covenant that clearly spelled out the acceptable types of housing allowed in the sub division. The key words in Colorado law allowing the restriction of manufactured homes in subdivisions are "valid covenant running with the land."

I would feel that it tended to stigmatism those of us who do own manufactured homes if it did not specify why they were unacceptable. The singling out of 11% of the existing homes seems a bit heavy handed when other forms of alternative housing are not being included. The three homes made of rammed earth and old tires and the straw bale and mud homes. One more of which is currently being built in a very prominent location.

There are some lot owners who just move their travel trailers off the lots for three months. Then they move them back for nine more. One of them lives in a tent on his lot for three months after his nine months are up.

Having some BOD members who interpret earth tones as a bright blue roof, or a canary yellow house with a white vinyl fence does make me wonder though.

I hope that what I have written has promoted thought and discussion. It has provided me with insight into the issues at hand and how others see them.

Now had only stick/site built homes been the intent of the developer, why would he have promoted his lots as suitable for manufactured homes? Why was the first home placed here a manufactured one? He was the author of the covenants and as such was in fact the HOA until 70% of the lots were sold.

I have posted some pictures on snapfish and will see if I can make them available.

Jack
MicheleD (Kentucky)
Posts: 4,491
Posted:
Again, telling me one of the first was manufactured still doesn't "tell" me anything. Because I don't know "manufactured WHAT?"

I'm just saying that I read what you are saying and am certain you have a very strong vision of what it is you are trying to espouse, but I don't quite know what you expect of us, I guess is where I'm heading.

And if the developer is anything like the developer of many of the subdivisions here, they just use templates over and over and don't really "write" the CC&Rs anyway.

They usually include the types of things that are typical of our land use code and zoning requirements, and, depending on what template they use, include things like no sheds, no above-ground pools, when half the time they don't really even care themselves.

Our developer specified that all homes -- ALL homes -- had to be a certain percentage brick or masonry (creekstone), and yet, one of the developer's representatives was approving builders to build all vinyl siding homes.

There is usually a little clause tucked in the CC&Rs somewhere that gives the developer complete discretion and allows him arbitrary withholding of approval or granting of approval.

So I, for one, anyway, would NEVER be able to decipher what a developer's "intent" might have been when the CC&Rs were drafted.

PaulM (Pennsylvania)
Posts: 1,347
Posted:
J: Have you pursued your question of manufactured homes with the local municipal office to learn what "they" allow and/or if they are having the concerns you have?

All specs have to go through an approval process by the municipal authorities before they will put their stamp on a building project.
It would be interesting to know if ..."The three homes made of rammed earth and old tires and the straw bale and mud homes..." have had the seal of approval by the local land development officials.

TracyT (Maryland)
Posts: 228
Posted:
Paul, very interesting point.

John, "There are some lot owners who just move their travel trailers off the lots for three months. Then they move them back for nine more. One of them lives in a tent on his lot for three months after his nine months are up."

This was interesting too and makes me wonder what the thought process is for your BOD posting. It seems they may be having trouble enforcing temporary structure (mobile home) for permanent housing.

I get your point about feeling singled out particullary since you have ..."The three homes made of rammed earth and old tires and the straw bale and mud homes..."

I still believe the language in #10 is not sufficient to ban "manufactured homes" at least by the current state definition. I think that your BOD needs to clarify their intent for setting standards for the community then get the covenant changed for that.

JackS1 (Colorado)
Posts: 45
Posted:
The following responses and answers are not necessarily in the order that the comments and questions were received in.

The developer, Daniel C********, is the only one who can speak for his original intent regarding the covenants. I have not yet been able to contact him. My personal conversations with him were in 1999 and 2000.

This is the introductory paragraph to the covenants.

"It is the intent of these covenants to protect and enhance the value, desirability and
attractiveness of said property, and to prevent the construction of improper or
unsuitable improvements. Restrictions are kept to a minimum while keeping in
constant focus the right of property owners to enjoy their property in attractive
surroundings free of nuisance undue noise, and danger. Further, it is intended that
the natural environment be disturbed as little as possible."

I would guess the key words here are "improper or unsuitable improvements" as relevant to our current discussion.

There are no municipal codes are regulations governing the subdivision.

The subdivision is in unincorporated Montezuma County, Colorado. A county with no residential building code. The subdivision occupies approximately 2,000 acres and 12.8 miles of un-maintained county roads. There are 139 lots ranging from 5 acres in size to just under 50 acres.

For clarification as to the question of the first home being a manufactured what. It meets the definition of manufactured home found in 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. (3) (a) (I) Which you will find posted earlier in this thread.

I too firmly believe that covenant #10 is not intended to or sufficient to ban manufactured homes as defined by the above mentioned Colorado statute. My belief is based on extensive research in a wide variety of sources pertaining to the law and manufactured housing issues.

This discussion has prompted me to be clear about the definitions I use and what I need to clarify when presenting an issue. All of your responses have been of value to me, no matter what your point of view.

The covenants could use a rational well reasoned overhaul with concise and pertinent definitions that meet the standards set by their opening paragraph.

In the meantime the BOD continues to expose our uninsured HOA to the risk of expensive litigation and in my belief, again based on lots of legal research, possible criminal charges against them personally.

Another little side note of interest. No where in the original bylaws, covenants, or articles of incorporation was there any mention of a way to change or amend the covenants. That should probably be another thread.

I am still working on the best way to provide pictures to those interested. Any suggestions would be appreciated.

Jack
MicheleD (Kentucky)
Posts: 4,491
Posted:
there is a free photo hosting service called photobucket.

You can post on there and then post the link here.

You do not need to use identifying names, etc, in setting up the name of your account.

http://smg.photobucket.com/albums/v219/herse1f/sample/?action=view¤t=hot-rod-05.jpg
JackS1 (Colorado)
Posts: 45
Posted:
Thank you Michele. Hopefully I have it figured out.

For those who are interested you can copy and paste these links in your browser's window for a look at my CRS 30-28-115. (3) (a) (I) compliant manufactured home.

First view is looking towards the Mancos valley.

http://i183.photobucket.com/albums/x124/jds918/pic000.jpg

Looking west towards the BLM land our lot borders.

http://i183.photobucket.com/albums/x124/jds918/pic001.jpg

The following are various interior views. Though irrelevant to the covenants they do give you an idea of the overall quality.

The master bathroom was a finalist in the Moen "Show us your Style" contest.

http://i183.photobucket.com/albums/x124/jds918/pic001a.jpg

http://i183.photobucket.com/albums/x124/jds918/pic002.jpg

http://i183.photobucket.com/albums/x124/jds918/pic002a.jpg

http://i183.photobucket.com/albums/x124/jds918/pic003.jpg

http://i183.photobucket.com/albums/x124/jds918/pic003a.jpg

http://i183.photobucket.com/albums/x124/jds918/pic003b.jpg

http://i183.photobucket.com/albums/x124/jds918/pic004.jpg

http://i183.photobucket.com/albums/x124/jds918/pic005.jpg

http://i183.photobucket.com/albums/x124/jds918/pic006.jpg

http://i183.photobucket.com/albums/x124/jds918/pic007.jpg

http://i183.photobucket.com/albums/x124/jds918/Pic007a.jpg

http://i183.photobucket.com/albums/x124/jds918/pic009.jpg

I haven't figured out how to link an album yet other than snapfish and they want you to join before you can see it. Jack
MicheleD (Kentucky)
Posts: 4,491
Posted:
Jack:

Very pretty. I could use someone to update my interior decoration. Wonder what you charge! LOL
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Just an observation.

Frankly, I have no idea what to say that is going to change anything.

I get the picture but I am afraid "action" must come from some legal decision.
Certainly a difference of opinion is evident.

Could you get the board to agree to go to a Arbitor, if not does ths state or county has a resolution process. How about County Council or local public councils. Would the Board agree to present the case to the legal system for clarification. Can you and the Board split the cost of a lawyer. Maybe the answers lie outside of the HOA. Probably redundant points.

JackS1 (Colorado)
Posts: 45
Posted:
Michele, Thank you.
My wife is the one with the design ideas. I don't do colors well. My forte lies more in the area of form and composition. Though the final decisions are mutual ones.
I was a manufacturing jeweler, Gemologist, and goldsmith in Boulder, CO. for 20 years. My Wife, Dorothy, is a CPA. Allegedly retired she only has 100 or so clients now. I suspect her hourly consultation rate would be the same as she currently charges. She has declined the offer to do design work on more than one occasion. I should mention that we did most of the interior work ourselves. We got fed up with unreliable contractors and tradesmen.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
Robert,
I don't know if I can change anything. But I do intend to try. I am going to ask for a sit down with the board and their attorney if necessary. I will try to have a polite and rational discussion of the hard facts of the matter. I do have some questions I need answered first. I agree that a mediator could be of service. I have yet to talk to the county attorney's office. They have had some prior isssues with the sub-division and would just as soon not have anything to do with it.

I have absolutely no clue as to their current thinking. They have been supplied with the same information that I have posted in this discussion. As a matter of fact they had that same information two years ago. I am not sure if they fully comprehend the legal and financial implications to both themselves and the HOA members as a whole. The fact that they are currently lacking any insurance coverage at this time (to the best of my knowledge)is a cause for concern. That being the result of large legal fees incurred when they were sued by a member. They finally settled, but essentially they lost the case. Suing the HOA would in effect be suing myself and the other members.

I thought the matter was a dead issue when their amendment to the covenants banning all forms of manufactured housing, pre-fab's, and modular homes failed to pass in October of 2005. By their report it failed to pass by only one vote( 69 out of the 70 needed.) That however is only a simple majority. There being 139 lots/members. Could the board at that time been aware of the fact then #11 now #10 was not suitable for the purpose they desired?

The Covenants as they currently stand require a 2/3 vote to be amended. As previously stated, the original documents do not contain any mention of a means to amend. Based on prior statements, I am guessing they will support their position on amending the original covenants by a simple majority vote on the basis of the Colorado Common Interest Ownership Act of 1992. I am just beginning to work my way through it and it's implications.

I wish that this was just a simple issue of covenant interpretation and enforcement. From my reading, I know now that there is no such thing.

Jack

Footnote: Several weeks ago one of the board members was videotaped in the act of releasing a packrat and allegedly tossing a few nails onto the property (driveway) of the party who won the suit against the board. He has suffered previous acts of vandalism since prevailing against the board. I think it would be proper for this member to resign from the board. Needless to say, he is filing another stack of actions against the board and the party involved. I should mention that he is an attorney from the East Coast specializing in HOA matters. He is a formidable opponent. I suspect this could be distracting them from the issues I have presented.
Yes, I have seen the video. It was quite clear as to which board member was involved. I also read the sheriff's report as posted in the Cortez Journal. This is also the board member who told me not to bring up the Manufactured home issue.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Jack,
From all you say it looks like your concerns may be considered secondary to the problems at hand. All the more reason for all parties to sit down with a mediator aand get each special concern severed from the others and solve them separtely. Without knowing how the law will consider all this the best suggestion I could give to really have a solid paper trail indexed and in a file. Index all the specifics and know where they are located. Inform the Board by registered mail of all your concerns and copy any official you can get interested. Try and get a council member to champion your cause or a state or county representative.

Now if your position is simple: They are going to allow me to live in a dwelling of my choice or I am going to court, by all means convey exactly that to the Board and county officials. Sounds like you are not going to have a lot of wiggle room so the sooner settled the better. You might be able to force your way to the head of the line with a little bit of political help. For you, the sooner the better and if things turn sour at a hearing you can always grab the coat tails of any other court business.
JackS1 (Colorado)
Posts: 45
Posted:
BOARD OF DIRECTORS MEETING
July 26, 2007
San Juan Basin Technical College
7:00 p.m.
MINUTES
Old Business:
Covenant #10: At our last meeting, it was decided to consult a lawyer for clarification on this issue. Jim xxxxxx and Gary
consulted with a local attorney, presented him with all the information from both sides and requested a written summary from him. At this time, this is being processed and we should have it by our next meeting.

For some reason I did not receive a notice of this meeting. Nor was it mentioned to me at the HOA gathering I attended on July 22 at the BOD president's home. Most of the BOD was present. I did not bring the subject up at this social function. There were only 3 HOA members present according to the minutes. The previous meeting after my letters to all was packed.

My personal position has nothing to do with the dwelling of my choice.
It has to do with keeping the board honest and seeing that the greater body of the HOA is not harmed by the BOD's actions. It also has to do with seeing that the intent of the covenants as stated in them is being met.

A lost lawsuit could easily bankrupt the HOA. Our roads, though not owned by us and probably owned by the county would rapidly become unusable for most vehicles. Road maintance is the major expense for HOA. I don't think we have any commonly held real estate. The only physical property, that I know of, held by the HOA would be some herbicide spray tanks. I say probably owned by the county as the party who sued the HOA has a quit claim from the developer giving him the rights to the roads. However you can't give away something you don't own.

My next move will really depend on the advice they receive from the unnamed local attorney. Assuming he is competent and not just a paid tool, he should come to the conclusion that #10 can not be used to support their position. They have already had 60 days to check on my citations

Jack
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Jack,
There is a real possibility that the Board is not obligated to divulge the opinion of the Attorney. The Lawyer is hired by the Board and Lawyer - Client privledges may prevail.

They could give a verbal explanation of the lawyers input. The decision rests with the Board. I would guess they are not anxious to discuss this with you. This could be for several good reasons. One thing for sure, I doubt they will call you up and say they are sending a copy of the lawyers letter. Keep in mind, they have a butt to cover, as we all do. Maybe they consulted with the lawyer about more than one issue?

Was 3 board members a quorum?

Any common property should be listed in your documents (Real Property that runs with the Land).

Can't you find out from the county who owns and maintains your roads?

What webs we mortals weave, when first we practice to deceive. I forget who said that.
JackS1 (Colorado)
Posts: 45
Posted:
Robert,
I had never considered that they would refuse to reveal the content by way of attorney/client privilege. They said that they would reveal the information to the homeowners.

It seems that once again I was not clear enough. 5 of the 7 Board members were present. There were also 3 lot owners present. The meeting lasted for 36 minutes.

To the best of my knowledge our roads really are owned by the County, but not maintained by the County. The lack of county maintance is indicated by the use of red rather than green street signs here. Rather than my legal mailing address being on County Road K.3, it is on Road K.3 . We are on Grid system which indicates our location by the distances from (or to) the borders. Hence 35150 Road K.3 would be 35.15 miles from the Utah border to the West and 11.3 miles north of the Nation of the Mountain Ute's border.

The quit claim I mentioned was granted long after the county was granted the roads. It was acquired by the holder for the purpose of aggravating the BOD during his previous bout of litigation against the board. The county was also given land to be used for fire department substation. Which after a great deal of squabbling with the original developer( who sued to get it back) did in fact get a station built on it. There is some property adjacent to the station that is cleaned up by volunteers from the HOA. I am not certain, but it may a portion of the fire dept allotment. I must check on that.

The biggest part of the HOA budget goes to keeping the roads open and passable year round. Though the county signed off on them, they were substandard in some areas. They get washboards in a hurry, potholes, plugged culverts and washouts.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
I heard through the grapevine that the BOD has finally received an opinion from their attorney. I also heard that they now want to try for new covenant to ban manufactured housing. No one has formally advised me of this. Nor do I expect them too. I am not certain that they can ban Manufactured homes as defined by 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. See my prior posting this thread Posted:7/7/2007 7:33:55 AM.

Any thoughts on this?

It seems to me that such a covenant would have to very cleverly written to avoid being discriminatory.

The last time they tried to ban all types of factory built housing they just missed their simple majority by one vote. Now they must have a 2/3 membership vote to amend.

Jack
Jadedone4 (Virginia)
Posts: 495
Posted:
Jack, if your rights now are unaffected by the current applicable covenants, they would not be affected by any new covenants approved by the HOA - UNLESS your stated classification changes. In other words if your status now is "kosher" with the HOA, and they approve a covenant, you are not in violation as your property status is (or should be, and would be defended in court as) "grandfathered." Now if your particular status changes (say you alter your property, or buy new type of home, etc), then you are then exposed to the new covenant's requirements.

I fail to see how the issue could "rise" to being "discriminatory" based on an HOA establishing covenants towards what community standards are applicable. If they (community, via the HOA) does not want manufactured homes on lots - in a deed restrictive community owners agree to live by the covenants as applicable - therefore the HOA can "restrict" them. If your community's HOA is not in violation of Federal/State/Local laws - then if they want they can ban just about anything. Not suggesting that the situation is "fair," just that it is what it is.. as you live in a community under HOA's covenants.

You mentioned that a previous measure by the HOA failed to reach the appropriate percentages need for passing. I would concentrate my efforts there, mobilizing neighbors to be involved and supportive of my position against the HOA, so that whatever "majority" is required (of board members, or of full community) that I have the support "of the people."

I think that it was RobertR1 here who posted recently about how to "take the fight" to an HOA board; and how owners should understand that they need to be part of the process, and not just "buck" the system. In an HOA we do "agree" to live by certain standards - which are "decided" by a board (or majority). I would additionally ask of you, what is it that you hope to really acheieve here? What is to be gained by this new covenant by the board? How will if affect my station in life?

Sometimes you have know when to fight a war, battle by battle... and other times you need to accept that the battle cannot be worth losing ultimately the war...
JackS1 (Colorado)
Posts: 45
Posted:
Recived from the BOD secretary 10/19/2007 9:37:15 A.M. Mountain Daylight Time

Hi Jack,
We got your email and passed it on to board members. We do have an opinion from the lawyer and it will be discussed at the meeting on the 25th. We did not have a meeting in Sept.
Ruth
JackS1 (Colorado)
Posts: 45
Posted:
Recived from the BOD secretary 10/19/2007 9:37:15 A.M. Mountain Daylight Time

Hi Jack,
We got your email and passed it on to board members. We do have an opinion from the lawyer and it will be discussed at the meeting on the 25th. We did not have a meeting in Sept.
Ruth
JackS1 (Colorado)
Posts: 45
Posted:

Not quite sure how that got out twice and in the wrong order.

This was my letter to the HOABOD president

Jim,

From the May 31, 2007 BOD meeting minutes.

"After a much-heated discussion that was unanimously against the letter from Lot 81, it was agreed that the Board would seek the advice and clarification from an attorney on this issue and report the results at the next meeting. It was also agreed that depending on the ruling from the attorney, we might have a membership vote on this covenant at a later time. A motion was made to consult a lawyer, 2nd and passed."

Would you please advise me regarding this matter? Was an opinion received? May I have a copy of it?

My opinion has not changed. Covenant #10 is not sufficient to ban manufactured homes from the subdivision. I am open to changing it, however, if presented with a well reasoned and documented legal opinion.

Though I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115. I certainly would not want to see true mobile homes and singlewides in our neighborhood. We need a clearly written covenant proposal if certain types of homes are to be prohibited. It should have a valid reason for it's existence and meet the stated intent of our covenant's preface. Unambiguous definitions are a must and they should comply with current federal and state ordinances. I would be glad to help write one to that effect. Our covenants need to be cleaned up. Accurate definitions need to be included to avoid future problems.

I have never had the intent to sue the BOD nor do I advocate it. Suing the board is like suing yourself. My concern is for our mutual safety and financial well being. By creating some controversy I endeavored to promote discussion and participation. I accept the fact that I will alienate some of the membership. I don't present anything that I can't back up with documented facts. I make a point of looking at both sides of the issue. I try and find information counter to my beliefs so as not to be mistaken in my views before presenting them in a public forum.

.Having done a vast amount of research, I am all to aware of the financial liability that we share and the risks the Board members are exposed to. The fiduciary duties that the board members need to comply with are frightening in their breadth. .This link will take you to very useful HOA supportive site with some good information on how to avoid problems in that area http://www.cohoalaw.com/governance-fiduciary-duties-of-board-members-an-overview.html

Some more discussion regarding the implications of those duties. Though intended more for condos and cooperatives it is still pertinent. http://www.cooperator.com/articles/178/1/Is-Your-Board-Carrying-Out-Its-Fiduciary-Duty/Page1.html

Though not always in agreement with the BOD, I still think you are doing a commendable job under difficult circumstances.

Would you please see that the other board members receive this information?

Jack

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JackS1 (Colorado)
Posts: 45
Posted:

My response to the reply

Ruth,

I will not be able to attend the board meeting due to a prior commitment. I have a conference to attend.

Please be so kind as to promptly send me a copy of the attorney's opinion. That would allow me the chance to send a statement regarding it.

The more I read and learn about the CCIOA, Homeowners Associations, and the law, the more concerned I get about the well being of ours.

Jack
-----------------------------------------------------------------------------------------------------------------
Needless to say I still don't know what the opinion says. No copy recieved.

I started this in Mid-May with my letters to the membership and it is now late October. Everything remains as it was. Misinformation and obselete information being spread on the website. I just checked on that.

More will be revealed. I hope!

Jack
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Jack,
GGGGGGRRRRRRRRRRRRRRRRRR!!!!
The BOD takes you input and your money to take your ideas to a lawyer and comnes back and tells you they have an answer. Then after the Board discusswes it in private they will bring it up to the membership at a meeting.

GGGRRRRRRRRRRRRRRRRR!!!

No wonder Boards have trouble. They apparently believe they can handle the problem but you can only handle it in an open meeting, that's a crock.
No reason they should not let you see the reply. At least you are/maybe going to get a reply in writing, my board wouldn't even do that much.
But the war is not over, I will win the next battle.
GloriaM (North Carolina)
Posts: 829
Posted:
10. 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.

Read the 11th and 12th word in the above quote that you supllied:
Mobil Home..a double wide is exactly that.

However if they have others there and they have been allowed and they are only pointing yours out, then that is a horse of a different color, because a precendence has been set and if if its been as long as you state, then IMO yours should be granfathered in.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Gloria,
I read his problem is trying to get the covenants changed to a Manufactured home. If fact the board in 2005 agreed a manufactured home was not a mobile home. Then they wanted to include manufactured homes as mobile homes, which they are not. All he is trying to do is get the clause amemded to be specific about what they allowed up to this point.

Your last paragraph addresses a part of his problem in that he believes it is against the law to classify a house as a mobile home, and by amending the Covenant he will save a lot of problems in the future. IMHO
As always we can only react to how we look at the words.
JackS1 (Colorado)
Posts: 45
Posted:
Let me see If I can clarify my positions. First reread this lengthy posting from the beginning. Notice the federal definition of Mobile Home. Then look at How the state of Colorado defines manufactured home.

I want the board to acknowledge the fact that manufactured homes were never legally prohibited from the subdivision.

I want them to acknowledge that covenant #10 is not suitable for that purpose.

Following that I want the misinformation removed from the web site and all of the members and local realtors notified that a mistake was made. (No admission of guilt necessary)

Not that I expect that to happen

I believe that they are breaching their fiduciary duties and subjecting all of the membership to unnecessary financial risk. Remember our BOD is uninsured and uninsurable. The broad statements they have been making are not in the best interests of the members particularly when those statements are both false and misleading.

I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115.

If the membership as a whole wishes to ban manufactured homes from the subdivision( a 67% vote is required by our covenants for amendment) a covenant needs to be written that is in compliance with both state and federal law. They would need a very good reason to do this that would be compatible with the stated intent in the preface of our covenants. The definitions used would have to be concise and in context.

I am not sure that under the current Colorado law that they can be banned. They can be regulated to be compatible with the other homes in size and appearance providing all are treated the same.

I still have some questions regarding the amending of our covenants in October 2005. Our original documents make no provision for amendment by anyone other than the declarer/ developer.
They were amended by simple majority in 2005 and the 2/3 majority clause amendment was added then . As we are in Colorado the Colorado Common Interest Organization Act has some bearing on this.

For clarification (courtesy of HUD)

Manufactured Homes ...are built entirely in a factory in accordance with a federal building code adopted and administered by the U.S. Department of Housing and Urban Development (HUD) and known as the “HUD Code.” ,
The HUD Code is a preemptive code which means that it supercedes any state or local codes that apply in the area where the house will be sited. Homes arrive onsite complete with appliances, carpet, paint, lights, and with the utilities ready to be hooked up on site. They are typically 80 to 90 percent complete (those consisting of two or more sections or two stories, require extra on-site completion). The term “mobile home” does not apply today when most manufactured homes are not mobile at all. Many are placed on permanent foundations and are considered real property.

For the rest of this interesting HUD document copy and paste to link to this PDF
http://www.huduser.org/Publications/pdf/factbuilt_1.pdf

Remember that our county has no residential building code. A site built home can be of substandard construction. A Manufactured home must meet stringent requirements and pass repeated inspections.
Factory built homes are produced in controlled environments using standardized materials. Today most of the new ones are 4 star energy rated and of 2 x 6 construction.

The only reason I care about the grand fathering covenant is because it is poorly written and not pertinent to the current situation. As far as I am concerned it has no bearing what so ever on my home or the others in the subdivision. None of the existing permanent homes are mobile homes.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
Let me see If I can clarify my positions. First reread this lengthy posting from the beginning. Notice the federal definition of Mobile Home. Then look at How the state of Colorado defines manufactured home.

I want the board to acknowledge the fact that manufactured homes were never legally prohibited from the subdivision.

I want them to acknowledge that covenant #10 is not suitable for that purpose.

Following that I want the misinformation removed from the web site and all of the members and local realtors notified that a mistake was made. (No admission of guilt necessary)

Not that I expect that to happen

I believe that they are breaching their fiduciary duties and subjecting all of the membership to unnecessary financial risk. Remember our BOD is uninsured and uninsurable. The broad statements they have been making are not in the best interests of the members particularly when those statements are both false and misleading.

I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115.

If the membership as a whole wishes to ban manufactured homes from the subdivision( a 67% vote is required by our covenants for amendment) a covenant needs to be written that is in compliance with both state and federal law. They would need a very good reason to do this that would be compatible with the stated intent in the preface of our covenants. The definitions used would have to be concise and in context.

I am not sure that under the current Colorado law that they can be banned. They can be regulated to be compatible with the other homes in size and appearance providing all are treated the same.

I still have some questions regarding the amending of our covenants in October 2005. Our original documents make no provision for amendment by anyone other than the declarer/ developer.
They were amended by simple majority in 2005 and the 2/3 majority clause amendment was added then . As we are in Colorado the Colorado Common Interest Organization Act has some bearing on this.

For clarification (courtesy of HUD)

Manufactured Homes ...are built entirely in a factory in accordance with a federal building code adopted and administered by the U.S. Department of Housing and Urban Development (HUD) and known as the “HUD Code.” ,
The HUD Code is a preemptive code which means that it supercedes any state or local codes that apply in the area where the house will be sited. Homes arrive onsite complete with appliances, carpet, paint, lights, and with the utilities ready to be hooked up on site. They are typically 80 to 90 percent complete (those consisting of two or more sections or two stories, require extra on-site completion). The term “mobile home” does not apply today when most manufactured homes are not mobile at all. Many are placed on permanent foundations and are considered real property.

For the rest of this interesting HUD document copy and paste to link to this PDF
http://www.huduser.org/Publications/pdf/factbuilt_1.pdf

Remember that our county has no residential building code. A site built home can be of substandard construction. A Manufactured home must meet stringent requirements and pass repeated inspections.
Factory built homes are produced in controlled environments using standardized materials. Today most of the new ones are 4 star energy rated and of 2 x 6 construction.

The only reason I care about the grand fathering covenant is because it is poorly written and not pertinent to the current situation. As far as I am concerned it has no bearing what so ever on my home or the others in the subdivision. None of the existing permanent homes are mobile homes.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
I have got to learn not to double click the submit button. Apologies for redundancy.

Some more interesting links regarding manufactured/factory built homes/housing with the recognition that some are industry sponsored.

http://www.manufacturedhousing.org/lib/showtemp_detail.asp?id=231&cat=1

http://www.coloradohome.org/docs/perception_vs_reality.pdf

http://www.modularcouncil.org/mc/lib/showtemp_detail.asp?id=49&cat=homebuyer_resos

http://www.hud.gov/offices/hsg/sfh/mhs/mhshome.cfm

jack
JackS1 (Colorado)
Posts: 45
Posted:
It is 1:00 AM on Oct. 26 and the board meeting should be over by now. I have yet to received a copy of the attorney's opinion regarding covenant #10 as requested or any information regarding it. I feel that BOD essentially denied me the right to knowledgeably participate in a discussion /controversy that I initiated.

I am uncertain as to what an appropriate response should be.

Somehow I expected this from them. I had hoped that they would act in a responsible manner. Perhaps they failed to examine the link on fiduciary duties of board members in relation to HOA members or maybe they failed to grasp the implications of breaching them.

I still have questions regarding the right to amend the covenants. I still can't find anything that I understand in the CCIOA that gives us the right to do so when that right was not in the original documents. I have repeatedly examined the section on amending. Can anyone provide me with some input on this? Perhaps a Colorado case law reference?

Jack

JackS1 (Colorado)
Posts: 45
Posted:
Sunday October 28, 2007
Mid day and still no word or copy of the attorney's opinion. Usually the minutes from The Board meeting would have been posted by now. It was on Thursday. Nothing on the web site except the same old misinformation on this issue. I could ask again, but it should not be necessary.
Still wondering what an appropriate response should be. I don't even know who the attorney is. I just hope it is not the one whose letter on modular homes they have posted as justification for their position.

Jack
JackS1 (Colorado)
Posts: 45
Posted:
From the minutes, as I never heard back from the board regarding a copy of the opinion.

Covenant #10: Two items need to be addressed on this covenant. Since our last meeting, Jim and Gary consulted our attorney in regard to clarification of the mobile home issue. After much discussion at our last meeting, our concern was if our covenant would stand as written. The attorney stated it would, but he gave an opinion that we should add the definition of the Mobile Home Act C.R.S. 38-12-201.5, subsection (2) to the definition section of our covenants. In order to further uphold our restriction, he suggested that we also modify Covenant #10 by inserting “manufactured home, modular home and double wide home.” These 2 items will be on a ballot for your consideration. It will also be in your packet in December.

My response

To the Board of Directors xxxxxx xxxx xxxxxxxx homeowners association

I have never maintained that covenant #10 would not stand as written provided it is kept to regulating temporary structures. Using it to ban manufactured homes is a real stretch. I know it won't hold up in court if used for that purpose.

The other issue is the financial liability potentially incurred by the posting of bad information on the web site and the use of out of context definitions to justify your opinion. I seriously doubt that most of them members have an understanding of their financial obligation to a pay a portion of any judgement against an uninsured BOD or HOA.

I don't think modifying #10 is a sufficient solution to achieve the desired intent of prohibiting certain types of homes from the sub division. Just adding words without defining them does not improve the situation.

A new specific covenant to that purpose with clearly stated intent and the reason for that intent would serve the members better.

This a bit of a slippery area considering the state's position on discrimination against manufactured homes and the way they define them in current law. Singling out Manufactured homes, the only form of built to code, inspected , and energy efficient residential housing in a county that has no residential building code may be a difficult thing to justify.

I would like to know your rationales for the opposition to the various forms of manufactured housing and the factual basis for them. I know that some of you are vehemently opposed to them. But only one of you has expressed a reason to me. These issues should be addressed before you even consider writing or revising the covenants. Any prejudgments need to carefully examined in light of the facts.

You have obligations to the community that should supersede your emotional responses in this matter.

I challenge you to research your personal beliefs on manufactured housing and then present me with the facts supporting them.

I have questions that I want answered in a prompt manner by email.

Who is the attorney? Has he ever represented any of you personally?

Was he shown my letters and given copies of them?

Did he spend any serious time examining them and checking the citations? How much time?

What questions were posed to him?

Is there a written copy of the attorney's opinion? If so I am requesting a copy be emailed to me.

Why is a definition from C.R.S. 38-12-201.5 being used when we are not a mobile home park? 38-12-200.2 - Legislative declaration. The general assembly hereby declares that the purpose of this part 2 is to establish the relationship between the owner of a mobile home park and the owner of a mobile home situated in such park. The use of another out of context definition is dishonest and tiresome.

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 maybe it would be in there. All I could find was the allowable percentages when amending was allowed by anyone other than the developer and his reserved rights.

While looking for that information, I encountered this.
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.

Has this been done? I am requesting that you email me a copy.

Is the board willing to let both sides of the arguments for and against proposed covenants be presented to the membership with any mailings sent regarding them?

I hope you will keep the following in mind as you represent the membership.You elected positions came with fiduciary duties that must be scrupulously observed. You have been placed in a position of trust requiring strict honesty without self-dealing or personal benefit.

Duty of Care. Community association boards must give the business of their associations the same degree of care and diligence that prudent persons would exercise in their own affairs in similar circumstances. The duty of care requires directors to invest time and attention in association business, make reasonable inquiry into association matters to enable informed decision-making, and take reasonable, not arbitrary or capricious, actions.

Consequences of a Breach of Duty
The consequences of a finding of breach of fiduciary duty can be severe. First, the offending board member will be held personally liable in money damages for all pecuniary losses sustained as a result of his misconduct. Such judgments (and the attendant legal fees) are rarely, if ever, covered by directors and officer's liability insurance. In addition, courts are not shy about assessing punitive damages against those board members who breach this most exacting of moral obligations. Finally, the Business Judgment Rule does not inoculate board action from judicial review when there has been a finding of breach of fiduciary duty. Thus, board action which may in fact be highly beneficial to the community is vulnerable to being struck down by a court when it is implemented in such a fashion that it breaches the fiduciary duty. These adverse consequences can readily be avoided with advance knowledge of the nature and scope of the fiduciary obligation and forethought by board members as to the implications of their conduct

Jack (John D.) Stillinger

I can't say I expect anything like straight honest answers to my questions. I base that opinion on the continued use and periodic changing of out of context definitions. There seems to be a certain pathology present.
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RobertR1 (South Carolina)
Posts: 5,164
Posted:
Jack,
All the rhetoric aside, and you know they are just going to ignore you and try and push this through come hell or high water, you now have something concrete to go on.
I am sure your docoments provide that any owner care request and has to be furnished the means to review and copy, (at a cost) specific HOA files correspondence and the like. If you can prove by the letter the board requested the lawyer review and recommend an opinion on specific references in you documents, you have the right to see them. You really have the right to see all or nearly all files that the regime originates of receives.
But, stick to specific and let this wording in the minutes punch a hole in their boat. I really don't know if I am for you or against your position, but no matter, I don't know enough to form an opinion. But I do know, the boards are just like all people and have failing like all people. That also means they are prone to shoot themselves in the foot, just like you and I.
Opinion: You should go through what they said in the minutes, they have admitted to doing certain things like consulting with an attorney about the case. The two people that went to his office should be singled out when you request information. But stick to this. You want to see any written comments that were made by anyone involved, their notes, records of phone conversations, etc, etc, etc.

They will like you less for this but that is not an issue. Make your request to see the specific documents by certified letter with a copy to your attorney. If you don't have one, get a good one and ask if he would acccept this letter having his name on it. If not that way, go to legal aid and ask the same thing, try to get someone elses name of your letter, maybe a councilman or woman or anyone with an official title and responsibilities. It is much harder for the Board to ignore that kind of inquiry. Stay away from accussing them of anything ar suggesting this is how they should do it. If you want to suggest something suggest that you have a personal meeting with the Board and the attorney.

It is impossible to know the whole involved story, but you need to break it down into small pieces.

Good luck, and keep picking, you will get it settled.

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