Expired covenants and no HOA

by Ruth
(Gunnison Colorado)

Visitor Question: Our rural Colorado subdivision let the HOA expire after 20 years in 2000. But the covenants are still publicly recorded. How do these covenants affect sale of property? That is, a buyer was concerned that he couldn't put his boat and trailer on the acre and half since it was forbidden in the old covenants.

Editors Reply: The answer will hinge on the exact circumstances. Anyone concerned about this particular situation would be well advised to consult an attorney who can read the exact documents in question and interpret them in light of Colorado law or case law.

Instead of being able to give you a definite answer, we will give make some general comments about how to think about this question.

You say that a subdivision allowed an HOA to expire. This implies that the original master deed or covenants describe the circumstances under which a homeowners association ceases to exist. If that is the case, and indeed in 2000 those tests were met, indeed you have no HOA or HOA officers to help decide current questions.

Then you also state that the covenants (which we might characterize as deed restrictions) are still recorded, even though your title calls them "expired covenants." Many things are still recorded but now no longer in effect; in fact usually there is no process for something to cease to be recorded.

So if your title is more accurate, and the master deed says that when there is no HOA, the covenants no longer "run with the property," then a new buyer has nothing to worry about if he or she wants to violate something that was in the old covenants.

In a few jurisdictions, there is a time limit on all deed restrictions, but that is the exception rather than the rule in the U.S. So probably a deed restriction is still in effect unless that master deed spells out what happens once an HOA expires.

If after you consult with an attorney, you find that you have deed restrictions or covenants that are still in effect, but you have no HOA, then it really is up to an individual property owner who feels aggrieved to sue to enforce the covenants.

If you are sympathetic with the prospective buyer, our suggestion would be to have an informal community meeting or barbecue in which this matter is discussed with the buyer. That might prove somewhat comforting, but if the covenant is still in effect legally, a new property owner should not make an investment decision on the basis of a warm and fuzzy response from the community. However, a positive or negative community response could help inform a decision to pay for legal advice or to give up on plans so as not to incur that expense.

Comments for Expired covenants and no HOA

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Defunct HOA Covenants
by: Mark - Colorado

We have lived in a small Homesite group in rural Colorado for over 42 years. The HOA has not been active in more than 25 years.

In the 58 years since the covenants were registered by the developer with the plat, no homeowner has particularly paid attention to the do's and don'ts of these covenants. In fact, we have peacefully and happily existed together while essentially everyone has "violated" at least a few of these restrictive covenants.

Now, a new arrival has threatened to sue both us as individuals and the (defunct) HOA if we don't revert to the letter of the 1963 covenants.

Most of us believe that we have long-since abandoned the original covenants by the de facto nature of our lifestyles.

Do we need to recreate the HOA in order to formalize the many changes we have been living by for decades?

Editors Reply: The answer to your question depends on whether your original covenants allow the HOA to change the deed restrictions. Often it is more complex than simply re-activating an HOA, and often involves dealing with the descendants of the person or legal entity that created the deed restrictions. You will need to consult an attorney for an interpretation of how to change the deed restrictions. This sounds harsh, we know, but it sounds like you already need an attorney to defend against a lawsuit, so go ahead and find out how the complex web of Colorado law, the wording of your own deed restrictions, and actions of the HOA when it was active interact in your particular situation.

Community Open Space
by: Sky

We purchased a small tract of land that abuts our property. It is designated on the deed as Community Open Space and would like to change that so as we can put a fence up. As to my understanding, a couple of years ago this tract was sold to the previous owners at a tax fire sale because the builder went bankrupt. Apparently there once was an HOA but it hasn't been operating since moving in 2 years ago. There is only 1 neighbor this would affect and she has made forcefully clear that she will oppose it. Can you please guide and/or make a suggestion to what we should do?

Editors Respond: In brief the answer depends on what your particular covenants say about the powers and duties of the HOA board, as well as other matters. Some master deeds have even spelled out what happens if the HOA does not function, so read your entire set of deed restrictions.

You say that only one neighbor will be affected, and we understand what you mean. But by definition, when there is community open space, everyone in the development is affected and probably is entitled to have a say in what happens. (We say "probably" because we do not have access to the master deed document.)

So if you want to pursue this matter, you need to read your restrictions and understand as much as possible, and then if warranted, hire a lawyer to help you resolve the question.

Subdivision Protection Laws
by: Anonymous

I hope it is okay for me to pose a question, in light of the fact that apparently this subdivision has been on record long enough for the HOA to expire.

When does a subdivision's rights, under subdivision protection laws, cease to exist? I live in a very old subdivision, and have had to take a neighbor to court for trying to open a business, not allowed in the residential zoning district. My case was for nuisance, not land use, because whether the use was legal or allowed, does not allow nuisance to go on.

So, again, if a subdivision is totally used as residential use, but there are some neighborhood commercial uses nearby, can someone open a business as of right, in an older subdivision? Or are the protective laws still enforceable?

Editors Reply: Your question really does not seem to be related to covenants or deed restrictions at all. Instead you really seem to be asking about subdivision regulations and zoning.

It's pretty easy to subtract subdivision regulations from this situation, as subdivision regulations set forth the placement, dimensions, and design of lots, streets, easements, and so forth. Subdivision regulations pertain when the subdivision first is created and will be carried forward through surveys and the legal system for transferring property. So subdivision law is in effect forever until changed, but subdivision law does not govern land use.

You really have a zoning question, at least from what you have said. If you live in a location where there is a zoning law in effect, as you say at one point, then the matter of whether there can be a business use of residential property is a zoning question. If the permitted uses in the zoning district that applies to the location of interest to you give only a list of residential land uses, then a business is not permitted, regardless of the age of the subdivision, covenants, nuisance, or any other matter.

If you are not sure if there is a zoning law in effect, ask your municipality if you live in one, or if you live in an unincorporated area, ask your county government. Then if you find out for sure that there is a zoning law that applies to the property in question, ask for a copy of the permitted land uses in that zoning district.

If zoning law is being violated, it is the responsibility of the government that enacted the zoning ordinance to enforce it at no expense to you or other residents of the subdivision.

As you note, the question of whether a neighboring property constitutes a nuisance in a legal sense is a separate question, and one that can only be answered by asking about local laws, and sometimes by consulting an attorney about the particular situation if local law is vague (as many of them are).

Again, we do not give legal advice, but this is an overview of how to think about your questions.

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