|Can Homeowners’ Associations Restrict a Property Owner’s Freedom of Choice?|
|October 28, 2002
University of Denver Law Professor Jan Laitos
More and more property owners are affiliated with homeowners associations. Do these associations have the ability and power to prevent a property owner from making certain decisions about that owner’s property? Can a property owner’s decisions be overridden by an association?
A homeowners' association is the legal term for the organization that has rights with respect to aspects of an owner’s property that are “shared” with other owners. Typically, the association has power with respect to so-called “common property,” which usually is property EXTERIOR to the actual home that the owner lives in. For example, an association may have control over the grounds, items that are put on the grounds, the exterior of the house, and items that can be attached to the outside of the house.
In other words, the shrubs and trees and grass in an association are under the control of the association. To too are fences and railings and signs. The color of the house, as well as fixtures upon the house (like shutters or a satellite dish) can be subject to the power of the association.
There is one legal question that often emerges with respect to these common features of the property ownership. Who ultimately controls the shape, size, design, color, or construction of these features – the homeowner, or the homeowner’s association?
The simple answer is that the association, more than not, ultimately has power over these common matters. This means that the association can determine the exact specifications of fixtures or improvements that are added to the outside of a home. The association can also determine whether the feature can be added at all.
The fact that the association-approved external property improvement may cost more than an alternative is irrelevant. The association has the final say.
Why does the homeowner not have the ability to make decisions about what is, in fact, part of the homeowner’s property (albeit property that is shared with everyone else is in the association)?
One answer to this question lies in the contract that the homeowner signed that permits the homeowner to belong to the association. This contract, which is an agreement between the homeowner and the association, spells out relative rights and duties between homeowner and association. One of the duties assumed by the homeowner is the duty to comply with the wishes of the association with respect to the nature of commonly owned property.
Another answer lies in state law. Colorado law provides that a homeowner who is part of a homeowner’s association impliedly accepts the power of the association to make decisions regarding the exterior of the homeowner’s home.
Of course, these associations also provide great benefit to homeowners. These organizations ensure that nothing shoddy or haphazard or grossly non-conformist will be permitted to depress property values.
But the price for this security is loss of individual decision-making about certain aspects of property ownership. To retain full decisional capacity about your property, which comes at the cost of losing control over others’ property, don’t buy a unit within a homeowners’ association.