When I first started this website back in 2019, I wrote an article that was intended to begin a productive discussion that would create a foundation for our future actions. The article was entitled Purpose, Vision, Values because those are the three levels of foundation necessary for any organization to realize its goals and objectives. Without first establishing these elements, organizations tend to drift from one thing to another, sometimes abruptly with changes in leadership.
The purpose is the first and most important element. And, because it is a word that is often mistaken for having a plan, when someone is asked “What is the purpose?” or maybe more importantly “What is YOUR purpose?”, the off-the-cuff responses tend to point towards something obvious.
For instance, when asking someone what the purpose of a business is, the most common off-the-cuff response is “To make money!” While this is true, that a business should make money, that’s not it’s ultimate purpose. And, in fact, when those who believe it is the purpose, or the sole purpose, decisions that can cause harm to others are then justified with such poorly considered purposes. In fact, profit is a desired outcome, not a purpose.
So, when the purpose of an HOA is considered, the most common response is to “protect property values”. Again, while an HOA is expected to achieve this outcome, it is not the sole purpose of an HOA.
The odd thing is that most HOA Board members tend to think they know the answer already, particularly if they have been HOA Board members before – and they are pretty determined to defend this property value outcome as the actual purpose of an HOA. And, at Poudre Overlook HOA, this is what I have observed repeated by several board members and homeowners.
If you actually read the governing documents, however, you will find it stated in black and white. At POHOA, it is stated in the Articles of Incorporation under Article III:
Article III: Purpose and Powers
“The specific purposes for which the Association is formed are to provide for the maintenance, preservation, and architectural control of the Lots and Common Elements within that certain common interest community known as POUDRE OVERLOOK (“the Community”); to promote the health, safety, and welfare of Owners of the Lots within the community and any additions thereto as may hereafter be brought within the jurisdiction of this Association, and for the this purpose to:
(a) Excercise all of the powers and privileges and to perform all of the duties and obligations of the Association as set forth in that certain Declaration of Covenants, Conditions, and Restrictions for POUDRE OVERLOOK HOMEOWNERS ASSOCIATION OF FORT COLLINS (“the DECLARATION”) recorded or to be recorded in the office of the Larimer County, Colorado, Clerk and Recorder, as the same may be amended from time to time as therein provided.
(b) Have and excercise any and all powers, rights, and privileges granted to an association under the Colorado Common Interest Ownership Act, as amended (“CIOA”).
(c) Have an excercise any and all powers, rights, and privileges which a corporation organized under the Nonprofit Corporation Act of the State of Colorado by law may now or hereafter have or excercise.
The foregoing statement of purpose shall be construed as statements of both purposes and powers. The purposes and powers stated in each clause shall not be limited or restricted by reference to or inference from the terms or provisions of any other clause but shall be broadly construed as independent purposes and powers.
So, the actual stated purpose, as it relates to property values, is for the “maintenance, preservation, and architectural control”. This, in turn, has the potential to lead to higher property values, but to state that the purpose is directly tied to property values is false. The purpose is, stated differently, to keep owners from doing things to their homes or landscaping that have have the potential to interfere with the value of adjacent homes.
Prior to the 4/13/21 Board Meeting, Mr. Walker Flanary sent out a letter to everyone in the community arguing against the Anti-Harassment Policy which the Board announced 2 weeks prior was to be voted upon. In Mr. Flanary’s letter, he spoke to the purpose of the HOA.
In spite of Mr. Flanary’s insistence that the HOA neither has the purpose or powers to intervene in disputes between neighbors, and that the CCRs do not create such obligations or powers, in fact, they do. And, where they lack detail, the Fair Housing Act provides robust details about what defines quid pro quo or hostile environment harassment, as well as necessity to intervene in a timely manner.
When HUD issued new rules, cited by Ms. Heather Philips at the 4/13/21 meeting, in October of 2016, they explained the rule change in the Federal Register on 9/14/16.
“The duty to take prompt action to correct and end a discriminatory housing practice by a third-party derives from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowner’s association, condominium or cooperative), or by federal, state or local law.” Section 100.7(a)(1)(iii) of this final rule provides that a person is directly liable for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct a discriminatory housing practice by a third-party depends upon the extent of control or any other legal responsibility the person may have with respect to the conduct of such third-party.”
But, we also had Mr. Baker make a statement at the 4/13/21 Board meeting advocating against intervention. He underlined his statement with 49 years of legal experience combined with prior experience as a Board member of different HOAs. He emphasized that an HOA has no business getting involved in the business of harassment between neighbors. While this may have been true before 2016, the rule changes by HUD regarding FHA law make it clear this is no longer the case.
Mr. Baker did qualify his statement that he is no longer practicing law, and that he has an ethical obligation to avoid the perception of giving legal advice. Mr. Flanary did not qualify his statements in his letter or at the meeting, but is commonly known that he too was once formally an attorney, but is not licensed nor practicing in Colorado.
The issue that keeps arising in Poudre Overlook HOA is that we continue to treat statements from former attorneys as though they are a cheap and easy way to get legal advice. Or to treat their opinions as either expert opinions, or as more valuable opinions than anyone elses. The problem that is also recurring is that most of the people who speak out against this have failed to read our very own documents – the ones the Board has an obligation and duty to enforce.
Now, one could also make the argument that the Articles of Incorporation are not the Covenants, and for some reason would be considered less important than the CCRs. But, there too, all one has to do is read them to see that the same duties are described in nearly identical language.
CCRs ARTICLE IV: ASSOCIATION
Section 1: Membership: …”The Association does not contemplate pecuniary gain or profit to the Members thereof, and the specific purposes for which it is formed are as follows: (a) to operate the Common Interest Community known as POUDRE OVERLOOK located in Larimer County, Colorado, in accordance with the Act, as amended, and the Colorado Nonprofit Corporation Act, as amended; (b) to promote the health, safety, welfare, and common benefit of the residents in the Common Interest Community; and (c) to do any and all permitted acts, and to have and exercise any and all powers, rights, and privileges which are granted to a common interest community association under the laws of the State of Colorado, this Declaration, and the Bylaws, Architectural Guidelines, Rules and Regulations, and other governing documents of the Association.”
In Mr. Baker’s speech on 4/13/21, he suggested that those who might advocate or entertain “contrarian” ideas (which he gave the example of owning Ostriches) should not be allowed to participate in any document revisions, as though such ideas themselves were inherently defective, “crazy”, or designed to annoy or harass those who intend to actually do work in good faith. This is the red herring/straw man logical fallacy argument to immediately torpedo the ideas of us regular non-lawyer types.
So, while there may be those who are bringing their ideas of what the purpose of an HOA is in from other Associations for which they have been Members or Board Members, the fact of the matter is that OUR Homeowner’s Association does not, in fact, promote the idea that the purpose is “pecuniary gain or profit”.
That means that when Mr. Baker or Mr. Flanary stand up and say that it is, and that policies that might protect homeowners from abuse, harassment, bullying or any other behaviors or actions which might not just affect their physical health and welfare, but also their mental health and welfare, they are promoting something that is actually a contrarian point of view.
While it appears we are no closer to any actions on policies or document revision after the 4/13/21 meeting with much of the community pushing back, the reason should not be either Mr. Baker’s or Mr. Flanary’s rationale that POHOA has no business getting involved in matters of harassment, abuse, bullying, or any other oppressive action that may, with or without intention, harm or degrade the mental health or welfare of others. Action is required – both by FHA law, and our governing documents.
It’s literally one of the three prime purposes of this HOA.
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