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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38257
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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I live in a condo complex and the board and management company

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I live in a condo complex and the board and management company told me if I do not have my dogs swabbed for their dna so when they find poop they can track it back to my dogs or any other owners they say they will fine me if I don't.
Hello,

Who is required to pay for the DNA test?
Customer: replied 3 years ago.

the owners pay out of our dues

Okay, thanks.

You have a very difficult situation. Colorado law permits HOAs to assess fines for violation of the covenants, bylaws and rules. C.R.S. 38-33.3-302(1)(k). The issue here is whether or not this rule is within the power of your HOA to make. The argument is that it's one thing to make rules for the maintenance of the community, and quite another to make rules that force members to undertake affirmative acts.

Could the HOA order members to attend a meeting? Could the HOA order members to microchip their pets? The issue becomes one of degree. When does a rule become so intrusive that it is beyond the HOA's power to make the rule?

Objectively, the rule about which you complaint is right on the fence. The HOA's primary obligation is to maintain the common areas for the good of the membership. Were the HOA to install webcams in grass areas and then use the evidence to catch and fine members who did not clean up after their dogs, then that would be a reasonable use of funds. But, forcing each owner to submit their pet to a DNA test. Such a test as an affirmative act is overreaching. The next thing you know the HOA will demand DNA tests of each member, so that if a candy wrapper or kleenex is found on the ground, the HOA can trace it to the member.

I don't believe that a court would enforce this DNA regulation. However, I also can't say for certain, because you're into a "brave new world" with this type of rule.

If you refuse to do the swab, and you refuse to pay the fine, then you will have to be prepared to defend yourself in court. You may want to contact the ACLU and see if they would be interested in taking your case, to determine if it is beyond the reach of the HOA.

That would be my first move. After that, you will have to decide where you will draw the line -- because this is the sort of fight that could be very costly in court -- not just for you, but also for the HOA.

Please let me know if my answer is helpful. And, thanks for using justanswer.com!
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Customer: replied 3 years ago.

can you send this in a form I can print and I will agree to pay the rest of the fee

As soon as you provide a positive rating for my service, the system will automatically unlock the entire conversation and you can print it directly from your web browser at your convenience.

I can't send it to you -- not because I don't want to -- the system doesn't permit me to do so. All I can do is answer the questions.

 

Note: I have searched the appellate case law of every jurisdiction in the USA. There is, as of yet, no case anywhere, interpreting this issue. So, it's wide open for argument on both sides.

Hope this helps.