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Blog Entry 119 of 135 Revolution Anyone?

Remember the rise and fall of Rome? Well, it's happening again -- right here in our own country. Historians tell us that the United States is in its last phase of social and financial decline (as if intelligent and rational Americans didn't already know that). Americans who have been paying attention know that our legal system appears to be irreparably broken, and that our local, state and federal governments appear to be in corrupt shambles. Illegal aliens (most from Mexico) appear to be taking over our country. I also read (from reputable and reliable sources) that the United States, Canada and Mexico have plans to merge into one country. Can intelligent and rational Americans peacefully stop this madness? Or will there be another bloody American Revolution? Those two questions are what this blog is all about. Please join me in discussing what steps We The Intelligent And Rational People need to take to turn our country around before it's too late. Jan Jackson

Blog Url: http://coloradosprings.yourhub.com/~JanJackson

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Did The Trial Court Err? - Part II

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Contributed by: Jan Jackson on 6/21/2008

Readers will recall that Part I of "Did The Trial Court Err" concerned my attorney's Opening Brief in the Colorado Court of Appeals. It was a summary of the issues of my lawsuit against my homeowners association, as well as some background information.

Part II (below) of my attorney's Opening Brief is about the validity of my homeowners association's covenants, and amendments to those covenants, which we are challenging in the Appeals Court in Denver, Colorado.

Many serious problems burden HOA homeowners, nationwide, most of which appear to emanate from their boards of directors' uninformed, or (more often than not) intentional mishandling of amendments to an HOA's covenants (rules that an HOA homeowner must follow or he/she will find himself/herself in very serious legal trouble that will either put a very large dent in his/her wallet or life's savings, or destroy them completely).

Sometimes those problems happen because of HOA boards of directors' ignorance of state HOA laws. More often, however, it appears that improper decisions and actions are taken by fully informed HOA board members who are very adept at covertdeception. Such chicanery (or outright illegal behavior) by HOA boards usually is not readily apparent to those homeowners who are not paying very much attention to what's going on in their HOAs. All homeowners, of course, should always be very watchful forsuch things or they will suffer the ecologically and financially devastating results of their inattention.

Many HOA homeowners, however -- being the mere mortals that they are -- just are not very interested in what's going on in their HOAs -- until, of course, their own ox is gored. So, almost always, when one reads about lawsuits being filed by homeowners against their HOAs, it is one homeowner who is legally taking on his HOA all by himself (except for his attorney who will always be by his side when the legal going gets rough).

Remember, an HOA is basically just a little private government very much like a little dictatorship which has come into existence because a state legislature (in collusion with developers) has mandated that all home buyers in any HOA in their state must sign a private contract when they purchase their homes; a contract that (the homeowners will later usually find out) gives their HOA boards of directors the power to almost totally control their lives within their HOAs -- even to the extent of their boards' making unethical and illegal decisions and taking unethical and illegal actions that directly impact the homeowners.

Unscrupulous HOA boards of directors and their HOA lawyers, along with power-and-money-seeking legislators (which is almost always the case when a wrongdoing happens in an HOA) appear to be more or less the norm in the United States today. And there is no legal remedy for that terrible situation, other than a lawsuit, brought and paid for (usually) by one disgusted and courageous homeowner, out of his own personal income and/or savings.

The following is Part II of my attorney's Opening Brief in the Appeals Court wherein the reader will find some of our latest attempts to bring law and order to my own HOA.

Part II of "Did the Trial Court Err?"

II. STATEMENT OF THE CASE
B. The Covenants and Amendments

The 1977 covenants (Acc. F., Ex. 2) were recorded on August 9, 1977. These original covenants are not disputed. Paragraph 14 states in full as follows.

14. TERM OF COVENANTS: These covenants and restrictions are to run with the land and shall remain if full force and effect for ten (10) years from the date these covenants are recorded [August 9, 1977], after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a simple majority of the then owners of the property has been recorded, changing said covenants in whole or part.

On October 5, 1987, the first of the four post-1977 amendments was recorded (the "1987 amendment" - Acc. F., Ex. 3). This 1987 amendment was not signed by any owner. Instead it used an affidavit signed by the officers of the Association. Paragraph 13 of the 1987 amendment states in full as follows.

13. TERM AND CHANGE OF COVENANTS: These covenants and restrictions are to run with the land and shall remain if full force and effect for five (5) years from the date these covenants are recorded [October 5, 1987], after which time said covenants shall be automatically extended for successive periods of five (5) years unless an instrument signed by a simple majority of the then owners of the property has been recorded, changing said covenants in whole or part. In the interim, these covenants and restrictions of this declaration may be amended at any time by an instrument signed by not less than ninety (90) percent of the then property owners.

On October 6, 1992, the second of the four amendments was recorded (the "1992 amendment" - Acc. F., Ex. 6). This 1992 amendment likewise used an affidavit and was not signed by any owner. Article XI states in full as follows.

TERM AND CHANGE OF COVENANTS: These covenants and restrictions shall remain in full force and effect for five (5) years from the date they are recorded [October 6, 1992],after which time said covenants shall automatically extend for successive five (5) year periods,unless revised at the end of a five (5) year period by a simple majority of the ROA. During any five (5) year period the recording of an instrument signed by a two-thirds (2/3) majority of the then owners of the Ranch properties may be utilized to change the covenants in whole or part.

On October 3, 1997, the third of four amendments was recorded (the "1997 amendment" - Acc. F., Ex. 7). This 1997 amendment likewise used an affidavit and was not signed by any owner. Article VII states in full as follows:

TERM AND CHANGE OF COVENANTS: These covenants and restrictions shall remain if full force and effect for five (5) years from the date they are recorded [October 3, 1997], after which time said covenants shall automatically extend for successive five (5) year periods, unless revised at the end of a five (5) year period by 2/3 vote of the ROA membership based on one vote per parcel. During any five (5) year period the recording of an instrument signed by a two-thirds (2/3) majority of the then owners of the Ranch properties may be utilized to
change the covenants in whole or part. Any amendment shall be recorded in Teller county with an affidavit by the ROA certifying the necessary approval.

On July 16, 2003, the last of the four amendments was recorded (the "2003 amendment" - Acc. F., Ex. 8). Like the others, this 2003 amendment used an affidavit and was not signed by any owner. Article VII of this 2003 amendment is identical to Article VII of the 1997 amendment above.

The recording and content of the four post-1977 amendments are not disputed. Their validity is. In 2006, a fifth amendment was recorded but this 2006 amendment, although referred to in the testimony and included as an exhibit (Binder 3, Ex. RRRR), is not involved in the issues at trial or in this appeal. Tr. Vol. 4, p.104, ll. 16-23.

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Part III of "Did The Trial Court Err?" will concern the Trial that took place in 2007 for two days in July and two days in September.

Jan

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