Colorado Springs News, Sports & Business

SIDE STREETS: Defying HOA covenants turns into a nightmare

BILL VOGRIN Updated: December 12, 2012 at 12:00 am

For the third straight Christmas season, Richard and Alisha Cuevas are living away from their Colorado Springs home.

Even worse, because Richard has had to chase jobs around the country, they live apart. He’s in Texas while she and their three kids are anchored in New Mexico.

Meanwhile, their home sits empty in the Northgate Highlands neighborhood on the far north end of Colorado Springs. They say it’s uninhabitable due to construction defects that caused a mold infestation. They are suing the builder, Lennar Colorado, to fix it.

But the main reason the family is gone is because they lost a war with the homeowners association and were hit with fines so steep that Richard Cuevas, 49, had to come out of retirement as an airplane mechanic and find work to cover the bills.

Cuevas said he and his wife intended to raise their children and spend the rest of their lives in the home, which was new when they bought it in 2005. But it hasn’t worked out that way.

His story is a warning to anyone thinking covenants aren’t binding or those threats of daily fines and attorneys fees can’t be enforced and collected.

After Cuevas missed an October 2006 deadline to complete the landscaping, the HOA got its attorney involved. The situation escalated and got personal. Besides his alleged construction defects, Cuevas was enduring drainage issues due to natural contours of the neighborhood compounded by the way neighbors graded their yards.

By 2009, Cuevas’ yard remained the only one in the neighborhood with unfinished landscaping as Cuevas tried to force the HOA to intervene with the builder and against his neighbors.

He wanted new windows installed like other neighbors had received. He wanted mold removed from the walls. He insisted the house is sinking and needs its foundation reinforced. Again, he is convinced several neighbors had similar repairs done for free by the builder.

And because he blamed the HOA for not taking up his cause with Lennar, he still refused to complete the landscaping.

“My builder has repaired many homes in the neighborhood but will not do mine,” Cuevas said. “They take care of the HOA board members, but not me.”

Cuevas alleges selective enforcement of covenants by the HOA. He alleges conspiracies. He sees racism by white HOA officials against him, due to his Mexican heritage.

The HOA president did not return my calls seeking comment. But I pushed Cuevas to explain why he refused to finish the landscaping, incurring the wrath of the HOA.

Aren’t construction defects an issue between him and Lennar, not the HOA, I asked? The association only polices landscaping and parking and paint colors, right? It’s not a consumer affairs agency, I suggested.

“If everyone in the neighborhood is experiencing the same problems, why won’t the HOA help them out?” he said. “Isn’t that what the HOA is for?”

So years of angry email exchanges and confrontations led Northgate Highlands HOA to sue. And it won an injunction against Cuevas in 2010 and was awarded $15,000 in attorneys fees.

The family was given another year to finish the landscaping but it never happened. The HOA put a lien on his house and garnished his wages, collecting about $9,000 to date.

But he still owes thousands more — plus another $10,000 in delinquent HOA dues, daily fines and interest.

And the family is facing foreclosure on the home.

All because Cuevas decided to defy the HOA over the landscaping issue.

The family had a brief reunion last week as their lawsuit against Lennar was argued in a four-day trial in district court. Cuevas brought in experts who testified the house lacked proper flashing and caulking and other defects they said caused mold that was making the family sick.

Lennar brought in its own experts and denied any construction defects.

The case is in the hands of a judge and it could be weeks before a ruling is issued. But that won’t settle the case. I fully expect appeals by either side that loses.

And, meanwhile, Cuevas is back in Texas and his family in New Mexico. He often flies to visit them but hates the living arrangements.

I asked Cuevas if the fight was worth it. Does he wish he’d simply completed the landscaping and focused on his complaint with the builder?

“I did the right thing,” he said. “I pulled my family out. They were all getting sick.”

How it all ends depends on how the lawsuit with Lennar ends. If it ever ends.

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