Colorado’s statutes regarding homeowners’ associations (HOAs) are a favorite subject for legislative action, and this year is no different. The legislature passed HB 22-1139 and HB 22-1137; they went into effect in August 2022. Both amend the Colorado Common Interest Ownership Act (CCIOA), which was first adopted in 1992 and regulates HOAs in the state. HB 22-1137 will be the subject of a future post.
HB 22-1139 adds to a provision in CCIOA that prohibit HOAs from restricting certain activities for public policy reasons (C.R.S. § 38-33.3-106.5). The most well-known guarantee that a homeowner may display flags or religious symbols (within reason), may install xeriscaping, and may install things like solar panels. HB 22-1139 adds to this list. It does not allow an HOA to prohibit uses of a public right-of-way that otherwise complies with the local government’s ordinance. Put another way, the HOA cannot regulate use of a public street in a way more restrictive than the local ordinance. The HOA also cannot compel anyone to use the public right-of-way in any particular manner.
This new statute implies a rather absurd result. It would be okay for an HOA to, for example, prohibit someone from storing a school bus on their lot. However, if the code allows someone to park a school bus on the street in front of their house, the HOA could not stop that. I expect that something like this will happen, at least in unincorporated areas where permissive county land use codes control. There are many very nice HOAs where this is the case, and in such neighborhoods a homeowner will now have significant bargaining leverage against an HOA regulating storage of vehicles.
There are some limitations on this statute. First, it applies only to a “public right-of-way.” If the streets in the HOA are private, this statute won’t apply. Second, the statute seems to apply only to an “association.” The introductory provision reads: “Notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not prohibit any of the following:…” The term “association” is defined in CCIOA to mean a “unit owners’ association,” and so would seem to exclude the individual homeowners. Thus, could an individual homeowner bring their own lawsuit to enforce covenants that are more restrictive than the local ordinance? No Colorado case has reached that issue.
A third limitation on this statute may be law nuisance principles. A court might agree that storing a school bus on the street in a neighborhood of million dollar estate homes is a nuisance.