HOA Refuses to Accommodate Disabled Man

Neil David Brooks, a disabled man, tried to reach an accommodation with his Ft. Collins, Colorado next-door neighbor over barking dogs in 2009. Brooks house master bedroom window was just a few feet away from the neighbors dog area.

The neighbor failed to address satisfactorily a series of reasonable requests to seek available anti-bark training for his dogs and Brooks was forced to take further action due to the lack of peace and sleep was further aggravating his failing health. The battle raged for nearly seven years.

An extensive video, photo, and paper trail of what appears to be a reasonable series of requests that were stonewalled by the neighbor and subsequent series of escalated requests for help from the Property Management Company, HOA Board, Ft Collins City Animal Control Services, Ft Collins Police Department, Ft. Collins City Mediator (a friend of the dog owners who destroyed the city files of the case and left her job), all of which were stonewalled and apparently denied or ignored. The paper trail compiled by Brooks is available here. [1]

Mr. Brooks states that he professed and offered to document his disability at each stage of escalation. It appears the Americans for Disabilities Act was not considered or applied to Mr. Clark’s case at any stage of escalation.

Finally, his already poor health deteriorating further, Mr. Brooks and his wife sought a lawyer and went to court suing the HOA for not enforcing the covenants specifically prohibiting dog barking, disturbing sound, and nuisances. The relevant covenants can be found in “Declaration of Covenants, Conditions and Restrictions for West Vine Bungalows”, Sections 8.5, 8.15, and section 8.19.[2]

The outcome of the case was that the Judge Dan Court awarded a Declaratory Judgement in favor of the defendants.  My study of the court transcript record and  depositions support Mr. Brooks. In my opinion, the facts do not support a decision to grant a Declaratory Judgement. It is also my belief that Mr. Brooks was unfairly denied a trial by this judgement.[3]

To add insult to injury, the court awarded court costs to the HOA’s insurance company in the amount of $70,000. His own legal expenses exceeded $100,000. Mr. Brooks, an unemployed disabled man, was assessed his entire life savings of $170,000. The stress and loss of security was too much for his wife, so she left him. Today, after his seven year battle, he sits at home nearly blind, in severe pain, alone, and destitute.

This is a sad story. One that occurs often in Colorado District Courts. Justice is often denied to righteous HOA homeowners. Judges will very rarely rule against HOA boards, even those whose acts or inactions to cause irreparable harm to homeowners. Case law in Colorado favors HOA board protectionism.

Comment on This Case:

In my opinion, this case was won early in the process. Mr. Brook’s dog owning neighbors were active, popular, and contributory in the HOA. They took their case to the membership securing their support with a mass mailing. This may have assured that the board would not enforce the covenants. A negative rumor mill was possibly instituted that made Mr. Brooks appear arbitrary and capricious in his demands. Such a rumor mill can inhibit investigations by police and other authorities. A rumor may have also been spread that Mr. Brooks was not disabled as asserted and supported by the records. I say this because the association lawyer asserted this possibility as a possible defense.

I suggest a series of actions to counter such tactics in my book “HOA Survival Source Book”. In chapters 5 and 6.[4] In escalating a dispute with your HOA board or management company to a complaint and or litigation stage, it is important that you have the support and involvement of a substantial segment of the membership. You should also try to share the costs of litigation with like-minded neighbors, if possible. I also point out that you must expect and plan for retaliation through threats, lies, and rumor.

Finally, I point out in the book that you need to search through all laws state, federal, and local, and get everything going for your dispute possible. The requirements for lot set-back and spacing requirements should have been checked to see if the developers meets state and local requirements. Mr. Brooks mentions that he regrets that he did not file a Federal and State disability complaint, early in the process.

Other Views And Relevant Information

Neil Brooks was interviewed by Shu Bartholomew on her “On The Commons Radio Show , [5] broadcast weekly from Fairfax Virginia about his HOA living nightmare. The Show presented the crowding aspect introduced by what planners call “Smart-Growth.”

“Neil Brooks joins us On The Commons this week.  Neil has experienced it all.  The photo in this promo is an aerial view of the rooftops of Neil’s house and his three closest neighbors, built just a few years ago. This is what “smart growth” looks like.  As you can see, there is next to no private space, and is as far from the notion of the American Dream as one can get.  We’ll talk to Neil, find out how living in such close proximity to his neighbors has affected him and his health and we’ll learn how responsive the police have been when it came to enforcing local ordinances.  Of course, you will not be surprised to find out that the HOA isolated him instead of trying to help, while all his neighbors stood idly by, too afraid to come to his defense or say a word lest they get targeted.  We’ve also heard about the physical violence that seems to be present every time someone makes a ripple in the status quo in HOAs.  But that is not all there is to Neil’s story.  Not by a long shot”

Neil Brooks provides two sources that are relevant to his case. One link to HindmanSanchez, a premier Colorado HOA Law Firm, “Covenant Enforcement: Business Judgement Rule[6] explains the requirements of law in the light of current Colorado case law. The second, is a Los Angeles Times article, “Association Directors Refuse to Believe Homeowner is ‘Invisibly Disabled[7] ‘by HOA lawyer authority, Donie Vanitzian, that supports the fact that an HOA board has responsibility to make reasonable accommodations under current State and Federal Statutes.  Vanitzian states:

“An association in a common-interest development is bound both by the Americans With Disabilities Act of 1990 at the federal level and the Fair Employment and Housing Act at the state level. Under both acts, it is illegal to discriminate against anyone on the basis of a disability. There is an ongoing requirement that the board engage in discussions and considerations for reasonable accommodations to minimize impairment to anyone’s major life activities”.

We urge you to review these links.

NOTES:

[1] See Mr. Clarks Blog Summary Page at http://nbeener.blogspot.com/  see also the long version of the story at: http://nbeener.blogspot.com/2014/11/the-destruction-of-medically-disabled.html

[2] Declaration of Covenants, Conditions and Restrictions for West Vine Bungalows”, Sections 8.5, 8.15, and section 8.19 are as follows:

[3]The case was tried in the DISTRICT COURT LARIMER COUNTY, COLORADO LARIMER COUNTY JUSTICE CENTER F, Use Case Number: 2010CV473 Division: 4C.

[4]See HOA Survival Source Book, By Stephen Richardson, Available on Amazon ASIN: B01ND14DZ1 ISBN: 9781513619033

[5]A direct link to the show Mp3 is as follows: Shu Bartholomew on her “On The Commons Radio Show

[6] The HindmanSanchez article is available here: Covenant Enforcement: Business Judgement Rule

[7]  Donie Vanitzian’s Los Angeles Times article can be found Here: Association Directors Refuse to Believe Homeowner is ‘Invisibly Disabled.