The proposed Small Sales Event Policy (embedded below) by the POHOA Board is overly complex, will lead to disputes (and potential/inevitable legal expenses), has conflicts with Colorado State Law making some elements unenforceable, is needlessly impractical. As Dr. John Tunna put it, it is “very confusing”. I recommend amendments to address the issues:
- Do not attempt to regulate small sales event inventory
- No minimum time between the two allowed weekend sales
- Increase sign size limitations, and allow dry-erase or chalkboard sign types
- Remove elements attempting to regulate the streets (conflict with HB22-1139)
- Do not steal signs that violate policy (return them to owners)
After singling out one homeowner (us) for having a Plant Sale (pictured below), but allowing over a dozen other homeowners to have garage or yard sales in the following months, the weight of such obvious selective enforcement, targeting, and conspicuously strained logic in applying the CCRs, the POHOA Board has proposed a Small Sales Event Policy. CCIOA requires that a Board mail via USPS a notice about any new or amended HOA policies prior to the meeting where the policy would be adopted. In this instance, breaking from consistent past practices, the POHOA Board chose to send a notice about the intention to enact two policies without actually sending a copy of the policies.
After circulating a petition following the posting of an article critical of the Board’s actions in June, it appears the Board recognized their position was indefensible and has responded by creating a policy. But, rather than the clean, simple, and easy-to-understand policy proposed by Dr. John Tunna (John) on July 11, 2023, the Board has proposed a complex 4-page policy that will undoubtedly lead to confusion and disputes. Unless, of course, you get a pass because of your relationship with Board members (selective enforcement is not addressed in the policy).
The policy is overly complex and confusing, which inevitably will lead to disputes between homeowners and boards (present and future) because of interpretations. Disputes are only finally resolved with expensive litigation, so if a homeowner disputes the rules or enforcement of these new rules (which are invented and not attached to the existing governing documents), particularly as they were sprung with little notice requiring access to the website (which some owners clearly do not have), the expense of that enforcement falls upon all homeowners. This policy is a litigation magnet and needs amendment to cure.
For these and other reasons, the policy should be amended prior to adoption.
REGULATION OF SALES EVENT INVENTORY
The Policy goes to extreme lengths to exclude certain items from Garage and Yard Sales. Under the definition in Paragraph 5 of Section I Definitions, the Board is attempting to make Arts & Crafts into a Home Occupation (which is a proposed second policy at the same meeting). They also go out of their way to use the word “cultivating” to preclude the sale of vegetable plant seedlings, which was their original target of enforcement in June.
But, the key definition is in Paragraph 10, where the Board attempts to codify what they invented by email as enforceable policy in August – that a Garage or Yard Sale requires that it be limited to “sale of used goods that have been owned or used by the dwelling owner and/or immediate family residing in the dwelling. Goods cannot be acquired or consigned for resale purposes.”
The problem with this phrasing is that it presumes and HOA Board comprised of untrained volunteers with no certification whatsoever for expertise on any matters (let along business regulation) determine such things as:
- Whether the homeowner purchased or used something
- Whether the homeowner purchased the item WITH THE INTENT of “resale purposes”
- Whether the homeowner “cultivated” something with the INTENT of resale
- Whether the homeowner “manufactured, assembled or otherwise produced” something with the INTENT of resale
One of the most difficult things to prove in Court is INTENT. It would mean that enforcement of these provisions would involve providing facts and evidence – even if court is not involved. Enforcement of the governing documents, per CCIOA, requires impartial fact-finding. It implies that without facts, enforcement should not be pursued on assumption, hearsay, or anything less than facts admissible in a court of law. The reason for that is that any attempt to obtain a court order or collection of fines would require such facts to be produced and survive cross-examination.
On a practical level, this rises to the level of absurdity. Particularly for collectibles, not to mention for items that are gifts. That includes hand-me-downs, and other inherited items. According to this definition, if you are given something by friends or relatives and no longer wish to keep or store it (but did not USE it), the item is arguably off-limits for a Garage or Yard Sale.
Similarly, if you did, in fact, purchase items to collect them (a hobby), and then your spouse says you have to get rid of some of them, selling them for any amount more than you paid for them is an offense. This is literally why Garage and Yard Sales exist – to get rid of things, no matter how or why you purchased or acquired them, because of no greater reason than you don’t want them anymore.
4 WEEKS MINIMUM BETWEEN SALES EVENTS
In yet another apparently arbitrary, but likely targeted, rule with curious specificity, the POHOA Board wishes to limit homeowners from having TWO Garage or Yard Sales within 4 months. This accomplishes nothing as we saw in the Summer of 2023, where we had at least a dozen sales between June and September (4 months), resulting in many consecutive weekends with signage out on Overland and the resulting traffic and parking.
If the purpose is to limit traffic and parking (which an HOA is banned from regulating per HB22-1139), the only solution is to have community-wide Garage or Yard Sales coordinating the dates. This is the approach of many HOAs, and it comes with pros and cons. While sellers benefit from the grouping, they may be limited in such a way as preventing them from selling items prior to moving, or at a time when they may need the extra space to take in, for instance, an aging parent (and their belongings).
We saw one sale this summer from homeowners who had their home for sale. Their first sale was in August, and then just before they physically moved, they had a “moving sale” about 2 months later. There’s no good reason to limit such persons from having a second crack at selling the remaining items (particularly hard-to-move furniture) before moving. Burdening such homeowners with the expense of moving those items (or disposing of them at the dump at significant expense) is petty and wholly without any defensible purpose.
If different homeowners can have sales on consecutive weekends, there’s really no good reason to ban a specific homeowner from using up their two allowed sales weekends within a 4 month period, including in back-to-back weekends.
NEW SIGN REGULATIONS
The Policy attempts to regulate signs in a new manner. It limits the signs to 18″ x 18″, requires that they not be staked into the ground or attached to poles or trees, and that it cannot be dry-erase/chalkboard. These are unreasonable restrictions that negatively impact the success of Garage and Yard Sales.
We already have a sign policy that allows signs that are greater than 18″ x 18″. This Board apparently sees this as an opportunity to revisit that policy and override the allowed size. It’s arbitrary and capricious.
But, then there is the curious aspect of a sign no taller than 18″ that must not be staked into the ground or put on any pole or tree. No one will see a sign that low to the ground, particularly when driving by. But, then the policy further states that the sign cannot be one that is blown in the wind (becoming a projectile) which is nearly inevitable if the sign is both this small AND cannot be staked into the ground!
Add to this confusing absurdity the requirement that the 18×18 sign MUST include the TIME, DATE, AND ADDRESS of the event. The legibility of the sign, let alone the fact that no such sign could then indicate WHAT is being sold or the TYPE of sale (arguably important) and include all the other info, makes this a policy that by design negatively affects the SUCCESS of a sale. Is the Board creating this element of policy to deter sales at all? Or do they not understand that 75-90% of those buying from Garage or Yard Sales are finding them by driving around as a SOCIAL AND COMMUNITY-BUILDING ACTIVITY?
When John (Tunna) and I discussed a Private Sales Policy, one of the things we thought would make sense is to allow the use of the much-larger signboard the HOA uses for giving notice to meetings (which is then loaned to outside organizations such as PID) for these sales. It could be set at the median at the entrance to the community, and would lead to uniform signage that would meet the other requirements of being heavy enough not to be blown easily in the wind, and also allow homeowners to make the information about where, when, and what LEGIBLE with dry-erase markers. If uniformity is the objective, it’s arguably the best solution.
REMOVE ANY ELEMENTS ATTEMPTING TO REGULATE THE STREETS
HOAs are banned from regulating the streets at all for any purpose per HB22-1139. The inclusion of elements in this proposed policy that attempt the same in Article II Section 5 are necessary to remove.
STEALING SIGNS
One of the more offensive actions taken in our experience in May of 2023 was the fact that the Board literally stole one sign, and then hid another – before running it over with a car. To codify this behavior is simply offensive, figuratively and literally.
There is no need to steal anyone’s sign. If it is not in compliance, and the Board wishes to take action, they know where the sale is and they can either ask them to modify, remove, or return it to them.
SUMMARY
I agree a policy is necessary for regulation of private sales. I favor John Tunna’s policy, with perhaps some additional verbiage to enhance certain provisions. This policy is too confusing and complex and requires perpetual interpretation – leading to disputes about such interpretations. As is, it has the potential to lead to intractable disputes that lead to expensive litigation, and given the unenforceable elements combined with clear evidence that the Board wishes to target specific homeowners with this policy following botched enforcement of the CCRs, it is even possible that litigation based upon this policy ultimately fails.
Amendments to this policy could cure the deficiencies and are recommended.
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