Conflicts involving poorly crafted, unclear covenants are fairly common among residents of new subdivisions in the Southwest, where idyllic rural developments continue to sprout like encroaching cheatgrass and spread like drought-fueled wildfires.
But since last spring, some heated disagreements between neighbors at Cedar Mesa Ranches, the county’s largest subdivision, near Mesa Verde National Park have approached what one disgruntled homeowner likened to a state of “war.”
The issues driving the conflicts are (1) exactly who, under the covenants, has the authority and responsibility to maintain the subdivision’s troublesome roads, (2) how to maintain them, and (3) whether some residents are in violation of one covenant that bans mobile homes, RVs, campers, tents, garages and “shacks” from being used as dwellings.
“I suggest you think long and hard about how you want the next few years to be,” homeowner Torin Andrews wrote in an e-mail sent to the Cedar Mesa Ranches Homeowners Association shortly after the conflict erupted last spring. “War or peace – it’s that simple.”
Things definitely haven’t been peaceful since, with the superficial calm of the bucolic community being overshadowed by a flurry of lawsuits, resignations from the HOA board, and harsh statements and hard feelings on both sides.
And it’s still far from over.
‘Boards like you’
Andrews, a Maryland attorney who lives part-time at Cedar Mesa, had asked the HOA for permission to pave the northern end of County Road 35, a steep dirt-and-gravel cul-de-sac that provides access to his house and those of two adjacent neighbors. (Although CR 35 is considered a public road by the county, it is not maintained by the county’s road department.)
Andrews said he would bear the cost of the paving project, which he estimated to be about $20,000, and its upkeep. He recounted that his 10-ton motor home had nearly become mired in the road’s mud last winter even with chains on it, and that he also had trouble negotiating the road in his car.
However, the board rejected the proposal because his neighbors — Cindy Swann and Jackie McNeill on one side and Gail Mingesz on the other — believed concrete paving would make the steep incline more slippery during snowy conditions. The board had also been told that paved roads would be difficult and expensive to maintain. In his acerbic e-mail, which threatened a multimillion-dollar defamation suit, Andrews said that decision not to allow the paving, and derogatory statements allegedly made by board members about him, were mistakes made “by people who are too stupid and too arrogant to know they are stupid.” “But I shouldn’t complain,” he added. “It’s boards like you that help lawyers like me buy vacation homes.”
Nor was Andrews deterred from his paving project, stating in another e-mail, “I intend to pave the cul-de-sac whether the board approves or not unless I get credible facts that indicate this would not be good for the association.
“If you want to stop me, you will need a court order,” he said, “and to get that you’ll have to file a lawsuit.”
Which is exactly what the HOA did, obtaining a temporary restraining order Aug. 23 in district court that stopped Andrews from proceeding until the issue could be further explored. The following day Judge Sharon Hansen ordered the parties to mediate the dispute. Ultimately, a settlement was reached under which the HOA’s insurance company paid Andrews $4,000 for half of his estimated legal costs and the HOA agreed to Andrews paving only the center of the cul-de-sac so that the neighbors’ frontage will remain surfaced with road base.
But that was not the end of the legal wrangling.
‘Archenemies’
In legal actions that Andrews himself admitted were in direct response to the one taken against him, he filed complaints last October against both adjacent property owners for alleged covenant violations.
“We had a very good relationship prior to this whole mess coming on,” he told the Free Press in a recent interview. “Did they anger me at great length? Yes.
“If they were in violation of the covenants (before the legal battle began),” he said, “would I have declined to enforce the covenants against them? Yeah, maybe, because you want to live in harmony with your neighbors, but when that bon homie ends, suddenly you’re no longer neighbors — in fact, you’re archenemies — then you’ve got no reason to . . . not enforce the covenants.
“It’s not exactly like it’s retaliatory, it’s simply there’s no reason for me not to enforce my rights now, whereas before, I wouldn’t have done it mainly because I wanted to be neighborly. . .”
Claims and Counterclaims
One of those lawsuits alleged that Gail Mingesz was living in her garage while building her permanent home, and asked for monetary damages because of lowered property values. Mingesz has since moved into her house and that complaint is under mediation. Andrews told the Free Presshe is willing to drop the matter if he does not have to pay Mingesz’s legal costs, as she is requesting.
However, Andrews recently filed for a summary judgment in his lawsuit against defendants Swann and McNeill, which alleges that they are living in an RV on their property in violation of the covenants. (The RV has since been enclosed in a large structure, but Andrews wants it removed from the property.)
They in turn have filed a counter-claim accusing Andrews of violating the covenants by letting his dog roam free, erecting a non-complying fence, installing the wrong kind of outdoor lighting and committing other alleged infractions, all of which he denies. Swann and McNeill are also seeking to recoup the cost of their legal defense, claiming his lawsuit is “frivolous, groundless and vexatious.”
Andrews and Mingesz are entering into a mediation discussion later this month, but some other legal issues continue to ferment, including who actually owns and controls the roads in the subdivision — the property owners or the county.
Several of the Cedar Mesa landowners appeared before the Montezuma County commission on Dec. 6 asking for clarification and help in resolving that issue, but the board said it was essentially a private matter.
Terry Michael, former HOA board president, and Lisa Liljedahl, the current president, told the commissioners that the entire dispute had been complicated by a quit-claim deed that Andrews obtained from Dan Christmas of Redstone, the company that originally developed the subdivision.
Michael said that after the district judge ordered mediation take place between the warring parties, “we compromised and allowed him to get with some engineers to make a plan to pave the center of the street.
“Behind our backs while our settlement issues were going on, he made his own incorporation — he’s calling it the Cedar Mesa Ranches Lot Owners Association — then got a quit-claim deed from Redstone Development Company saying he owned the roads in the subdivision — this was all during the settlement period while we were negotiating with him.
“According to the assessor’s office, and they have a copy of this quit-claim deed, they said it’s bogus and they don’t know what to do with it.”
The map at the assessor’s office shows the roads have been deeded over to the county, he said, as redesigned unmaintained roads. Years ago the county adopted a policy of identifying public roadways it does not maintain with red signs, so that unsuspecting homebuyers would have some warning if the real estate agent neglected to mention the roads were unmaintained.
“So he says he owns them,” Michael said, “(and) we need a ruling from the county to say what these roads are.” Liljedahl concurred.
“Our members are extremely worried and they’d like a meaningful determination,” she told the commission.
“We’ve had our attorney check and he said they’re unmaintained county roads and that you hold the deed by virtue of this recording on the plat.
“Torin Andrews is disputing that and we need you to . . . tell us who these roads belong to.”
Michael said he was told by the county road department that the HOA is responsible for the roads in the subdivision. But, he added, Andrews said in an e-mail that “if we were to maintain the road, he would either sue us or have us arrested for trespassing.”
“So we need a legal determination of what this is all about (because) we’re going to have to continue to fight him in court, and we need evidence one way or the other,” Andrews told the commission.
Bob Slough, attorney for the commissioners, explained that a quit-claim deed only conveys something if the grantor owns it.
“In October of this year whether (Redstone) had any interest in the road I don’t know — they didn’t say they did (in the deed transfer),” Slough said. “They just said they were quit-claiming to this Cedar Mesa Lot Owners Association whatever interest they might have.
“That’s what a quit claim means, so if they didn’t own something when they signed this deed, then they didn’t convey anything.”
Andrews acknowledged to the Free Press that he had obtained the quit-claim deed and that he had just filed a lawsuit against the county to have the court decide who owns the roads. He said it was a very complicated matter, and that it has been difficult to find any case law pertaining to it. Not the county’s problem Montezuma County Commissioner Dewayne Findley told the Free Press the Cedar Mesa dispute is unusual in its intensity, but that people come before the county on a fairly frequent basis asking for help solving disagree-ments within subdivisions.
“What we do run into is people thinking that the county and the county planning department and the county attorney need to enforce covenants within a subdivision,” Findley said. “You get two neighbors in a dispute, and one says, ‘You need to make so-and-so do whatever, because this is what it says in the covenants.’ “But the position we’ve taken, on our attorney’s advice, is we don’t enter into battles over covenants. We don’t really enforce covenants.”
He said, unfortunately, many such disputes have to be resolved in court. “If you don’t have a strong homeowners’ association within a subdivision, it’s one neighbor against another. People don’t want to pay the money to go to court but sometimes that’s the only resolution.”
He advised anyone considering mov-ing into a rural area to make sure they understand who will maintain the roads. Roads with the red tags are not maintained by the county, he reiterated.
“We just allow them to be addressed with a county designation, but we didn’t build them and we don’t maintain them,” he said.
In the case of Cedar Mesa, Findley said, the commission’s understanding is that the roads are public roads, but not county-maintained roads.
He urged people to be careful and informed before buying any rural property. “If you go to Wal-Mart and purchase something, you want to know what you’re buying,” he said. “A home is a family’s biggest investment and they need to make sure they know what they’re getting into.”
(Other Cedar Mesa residents involved in these disputes were contacted by the Free Press, but refused to comment for this story because they were afraid of further lawsuits being filed against them.)
