Many lawyers in Colorado only represent HOA’s, because frankly that’s
where the money is. Many of those same lawyers belong to a lobbying group
called CAI or Community Association Institute. These lawyers and law firms
can be very biased and myopic – only seeing issues through the lens
of the HOA, which is not necessarily the best point of view. Frequently
HOA’s run afoul of Colorado laws, and commit illegal (and sometimes
unspeakable) acts against home and condo owners. And because their lawyers
only see one side of things (probably because of their paycheck) –
they effectively enable their HOA clients to continue to commit these errors.
Attorney Michael D. Evans and The Evans Firm is unique in Colorado because
we represent both owners and HOA’s (and their board of directors).
We believe this allows us to be fair and balanced in our approach, analysis,
advice, and problem solving. We believe very strongly in giving accurate,
correct advice – even if our clients don’t like it. Moreover,
we believe that the person who is right is not the person who has the
most money. Mr. Evans has spent his career fighting for the little guy.
Too frequently owners get steam rolled by the all-powerful HOA and their
attorneys. However, Mr. Evans absolutely loves the opportunity to represent
a righteous owner so he can push back against an HOA who is being a ‘bully’
and not acting within the bounds of the law. In Colorado, we have become
the go-to law firm to stop rogue HOA’s.
How is this done? Well, first we start where every lawyer should –
investigating the case. However, our firm is not simply looking for the
obvious breaches the HOA’s governing documents, rules, and regulations.
Any lawyer can put together a breach of contract lawsuit. And in an HOA,
the legal theory of breach of contract doesn’t fly that far because
the board of directors are all (or should be) volunteers. Many breaches
of contract can be chalked up to oversight, mistake, misinformation, or
simple ignorance. Additionally, a breach of contract by the HOA is frequently
not an excuse for an owner failing to pay dues. Moreover, a breach of
contract may be nominal in value, having little to no discernable damages.
Instead, at The Evans Firm we look for specific facts where the HOA has
seriously erred or taken liberties with governing their community and
owners. Not just little, technical details – but big, intentional
errors. Examples might be:
- showing favoritism towards one owner, or dislike towards another;
- blocking legitimate architectural improvements without any legal basis;
- prohibiting pets;
- fining and sanctioning owners without any basis or due process;
- unreasonably litigating against an owner;
- singling out one owner for minor violations but allowing more serious violations to occur;
- requiring strict compliance of one owner, but being flexible with others;
- requiring unreasonable performance or actions by one owner;
- failing to repair or replace common areas despite clear liability and responsibility to do so.
Board members may be volunteers, but that doesn’t stop the monsters
of ‘ego’ and ‘narcissism’ from infiltrating their
decision making. We frequently see these ‘volunteers’ become
rogue dictators or undisciplined toddlers, and quite bluntly, they need
to be spanked. We are happy to do it and have the tools and experience
to make it hurt.
We have developed a litigation technique, based in Colorado law, that allows
owners to turn the tables on the powerful HOA and a corrupt board of directors.
Every board member must statutorily act in good faith – but most
of the examples described above are not. Every board member is legally
bound in a fiduciary capacity to the HOA and the community – but
many of the examples described above are self-serving and irresponsible.
Every board member must statutorily use good judgment in making business
decisions – but most of the examples above fail that test.
Unfortunately, acting negligently in Colorado is not enough. If it’s
only ‘negligence’ that is found, then the board members technically
are immunized or protected by the law. They can’t be held personally
liable for their actions – which is really what you want. If you
want to teach someone a lesson, and flip the balance of power in an HOA
case, you must be able to hold the board members individually liable.
This is where the bully gets spanked.
Thus, the lawyer (us) and the owner must find evidence – whether
direct or circumstantial – that the board of directors has acted
recklessly, willfully, and wantonly. These are all legally defined, specific
terms. If an HOA has seriously run aground of its authority, then the
evidence usually isn’t that hard to find or procure, and the owner
will usually be persuasive proving their case beyond a reasonable doubt
(which is technically the legal standard even though it is a civil case).
If the owner can accomplish this, then this ‘volunteer’ board
member just made their bank account, car, home, stocks, bonds, and other
assets up for grabs in the litigation because they are now personally
liable. Not only that, but a smart ‘volunteer’ board member
will resign and cease the conduct immediately since they aren’t
being compensated to perpetuate the illegal acts or harms against the owner.
Unfortunately, we find that many board members are so entrenched in the
feeling of power that comes with being an HOA board member they can’t
seem to let go and realize this logical fact – to their detriment.
When the owner establishes reckless, willful, or wanton conduct, then
the owner may also seek punitive damages against the board member. Punitive
damages can be up to three (3) times the initial damages awarded to the
owner and are designed to punish. With that kind of penalty, it would
be malpractice for any HOA lawyer to advise their client to do anything
but back out.
Hopefully this was a helpful article illustrating what we do for righteous
home and condo owners in Colorado. The Evans Firm turns the power tables
in an HOA case and pushes back. Give us a call. And if your and HOA or
board member, give us a call too – because frankly there is no advice
like that from an attorney who has seen the other side of things. We are
an honest, candid, and experienced law firm in the area of HOA law in Colorado.
About The Author:
Attorney Michael D. Evans practices in Colorado and handles criminal defense, HOA law, wrongful
death, landlord tenant, and criminal record sealing cases. The Evans Firm
is based in Centennial, Colorado. Mr. Evans have been featured and published
nationally including TIME Magazine, The New York Times, CNN, The Wall
Street Journal, CNBC, MSN, NPR, The Denver Post, CPR, The Huffington Post,
BuzzFeed, and many others. Mr. Evans has conducted over 58 jury trials
in 8 years, many appeals, and has consistently earned a 9.5 Superb AVVO
rating and 2015 Client's Choice Award, and an A+ rating with the BBB.
He is also a member of the Colorado Bar Association, American Bar Association,
Colorado Trial Lawyers Association, and the Colorado and National Association
of Criminal Defense Lawyers, just to name a few. For Michael Evans, being
a lawyer is not just a career—it’s his heart-felt passion.
He has represented literally thousands of satisfied clients in the courtroom.
He was trained by some of the best lawyers in the state at the Denver
Public Defender Office and has attended the National Institute for Trial
Advocacy, NITA. He is an avid and tenacious litigator both in and out
of the court.