June 28, 2017

Colorado Supreme Court: CCIOA Permits Developer to Retain Right of Consent to Declaration Amendments

The Colorado Supreme Court issued its opinion in Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. on Monday, June 5, 2017.

Colorado Common Interest Ownership Act—Declaration Amendments—Arbitration Agreements—Colorado Consumer Protection Act Claims.

This case concerned whether (1) the Colorado Common Interest Ownership Act, C.R.S. §§ 38-33.3-101 to -402, permits a developer–declarant to retain a right of consent to amendments to a provision of a common interest community’s declaration mandating arbitration of construction defect claims, and (2) the Colorado Consumer Protection Act, C.R.S. §§ 6-1-101 to -1121, precludes arbitration of claims asserted pursuant to that Act. Answering the first question in the affirmative and the second in the negative, the supreme court affirmed the court of appeals’ judgment requiring arbitration of the claims at issue and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Condominium Association Failed to Satisfy Statutory Requirements to Amend Declaration

The Colorado Court of Appeals issued its opinion in Tyra Summit Condominiums II Association, Inc. v. Clancy on Thursday, May 18, 2017.

Colorado Common Interest Ownership Act—Amendment of Declaration—Notice Requirement.

The Clancys (owners) own a condominium unit at the Tyra Summit Condominiums II (Tyra II). Tyra II is administered by the Tyra Summit Condominiums II Association, Inc.. The Association is run by a Board of Managers. The Association was established by a declaration recorded in 1983 and subsequent amendments. In 2016, the Association sought judicial approval of its attempt to amend the Declaration, which effectively rewrote the 1983 Declaration.

The owners objected to the amendment, arguing that the Association failed to meet certain statutory requirements and that the amendment improperly changed their allocated interests. The district court approved the amendment.

On appeal, the owners asserted that the district court erred in approving the amendment because the Association failed to provide sufficient notice of the meeting at which the amendment was discussed. The Colorado Common Interest Ownership Act requires associations to discuss proposed amendments during at least one meeting of the association and contains specific notice requirements. The court of appeals found that the record did not support the court’s finding that adequate notice of the meeting where the proposed amendment was discussed was given to the owners.

As the prevailing party on appeal, the owners were entitled to their attorney fees pursuant to the Act.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Condominium Declarations Control Over Contrary Provision in CCIOA

The Colorado Court of Appeals issued its opinion in Francis v. Aspen Mountain Condominium Association, Inc. on Thursday, February 23, 2017.

Condominium Declaration—Common Expenses—Amendment—Colorado Common Interest Ownership Act—Motion for Leave to Amend—Indispensable Parties.

The Francis parties are trusts and their fiduciaries and other individuals with ownership interests in the Aspen Mountains Condominiums. The parties’ dispute arose from a contested 2010 vote that amended the original 1972 condominium declaration to reallocate the common interest shares and common expenses. The 1972 declaration had originally allocated common interest shares and common expenses based on unit size, and the amended declaration reallocated common interest shares equally among all units. Common expenses increased for the Francis parties, and they later filed suit, seeking a judgment voiding the reallocation of the common interest shares. The trial court ruled in favor of the Aspen Mountain Condominium Association, Inc. (AMCA), finding that the 2010 amendment had been properly adopted.

On appeal, the Francis parties first contended that the trial court erred by partially granting AMCA’s motion for a determination of law. Here, the declaration required a unanimous vote to alter the percentage of the undivided interests in the general common elements. The trial court erred by holding that the Colorado Common Interest Ownership Act, which went into effect in 1992, nullified the 1972 declaration’s requirement of a unanimous vote to alter ownership interests in the common elements.

The Francis parties also contended that the trial court erred in denying their motion for leave to amend the complaint to assert additional breach of fiduciary duty claims against AMCA. The motion was submitted after the discovery deadline and only a few months before trial. Further, the case had been pending for more than five years, and the Francis parties had already amended the complaint five times and could have added the newly asserted claim at any point. Therefore, the court did not abuse its discretion in denying leave to amend.

Next, the Francis parties argued that the trial court erred by denying their CRCP 59(a) motion to amend the judgment based on failure to join as indispensable parties the beneficiaries of the various trusts included among the Francis parties. The proposed additional parties were alleged to be beneficiaries of trusts that were already parties to the action and were represented by their respective trustees. As a matter of law, the beneficiaries’ interests were sufficiently protected by the trustees’ participation in the action on their behalf.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Preliminary Injunction Appropriate Where HOA Board Amending Bylaws Without Proper Notice

The Colorado Court of Appeals issued its opinion in Anderson v. Applewood Water Association, Inc. on Thursday, November 3, 2016.

Homeowners Association—Open Meetings—Notice—Colorado Common Interest Ownership Act—Colorado Revised Nonprofit Corporations Act.

Plaintiffs filed for a preliminary injunction to enjoin defendant Applewood Water Association, Inc. (Association) from (1) conducting special meetings of the board of directors (board) in violation of its bylaws and (2) submitting an amended declaration of covenants for a full membership vote, based on their belief that the amended declaration illegally conveyed certain property rights. The owners presented evidence to support their contention that the board conducted special meetings without giving required notice set forth in the Colorado Common Interest Ownership Act (CCIOA) and the Colorado Revised Nonprofit Corporations Act (CRNCA). They also presented evidence that those meetings concerned amendments to existing covenants. The trial court denied both requests.

On appeal, the owners contended that the trial court erred as a matter of law when it found that it had no legal authority to enjoin future violations of civil statutes. The CCIOA and CRNCA create a legally protected interest in open meetings. The plain language of both statutes gives a court the authority to enjoin the violation of their provisions where a movant can show noncompliance and harm. Therefore, the trial court has the authority to enjoin the Association from holding special board meetings without providing the notice required under CCIOA and CRNCA. The trial court’s order as to that preliminary injunction request was reversed and the case was remanded for further factual findings.

The Court of Appeals concluded that the second injunction request is moot because a vote on the amended declaration has already occurred. That portion of the appeal was thus dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CCIOA Requires Substantial, not Strict, Compliance when Subdividing Units

The Colorado Court of Appeals issued its opinion in Perfect Place v. Semler on Thursday, October 20, 2016.

Colorado Common Interest Ownership Act—Strict or Substantial Compliance—Quiet Title—Unclean Hands—Fraudulent Conveyance—Attorney Fees.

This action concerns title to three parking spaces. In 2000, Blake Street Condominium (Blake Street) bought a mixed use residential and commercial building and recorded a written declaration subjecting the property to the provisions of the Colorado Common Interest Ownership Act (CCIOA). A majority interest in the building was sold to Quail Street Company, LLC (Quail Street). Quail Street’s sole shareholder was Watson. Watson made multiple changes to the building, including subdividing the garage into three individual parking spaces (C, D, and E) by painting yellow dividing lines on the garage wall. Spaces C and D were normal sized, and E was able to accommodate only a motorcycle or very small car.

Watson sold the individual parking spaces, as part of condominium units, to different buyers who subsequently sold or mortgaged them. The City and County of Denver taxed each space individually, the Blake Street homeowners association (association) separately assessed dues for each space, and title insurance separately insured the spaces.

Semler claimed title to space C from a 2007 foreclosure proceeding and space D through a different foreclosure proceeding. In 2010, the association’s attorney notified Semler and Perfect Place, LLC (Perfect Place) of clouded title concerning spaces D and E. Semler paid for a quitclaim deed from the former record owner of space D and recorded that in 2012. He claimed title to space E from a different deed in lieu of foreclosure.

Perfect Place is a member of the association. Perfect Place claimed title to all three spaces from a 2011 quitclaim deed it received and recorded from Watson. Watson issued a correction deed in 2013 (correction deed). It also claimed title to spaces D and E from a series of conveyances originating from a wild deed.

Perfect Place sued to quiet title to the three parking spaces in the Blake Street property. The trial court found that Watson subdivided the garage into three parking spaces and that Perfect Place procured the 2011 deed by fraud, concealment, and unclean hands. The court concluded that Semler owned spaces C and D. Title to space E was resolved in favor of Perfect Place by agreement of the parties. The court ordered Semler to draft a proposed amendment to the Blake Street declaration memorializing the decision.

Semler submitted a proposed map allotting space C 132 square feet, space D 132 square feet, and space E 90 feet. Semler relied on the historical boundaries of spaces C and D and the dimensions of space E set forth in a recorded parking space agreement. Perfect Place objected, a hearing was held, and the court allotted space C 129 square feet, space D 114 square feet, and space E 122 square feet. Perfect Place appealed the trial court’s finding that Semler owned parking spaces C and D. Perfect Place argued that the absence of a formal application to the association’s board describing reapportionment of the common elements, as well as the absence of an amended declaration or condominium map that strictly complies with CCIOA, violates C.R.S. § 38-33.3-213. Semler argued that Watson substantially complied with CCIOA when he subdivided the garage into three spaces.

The Colorado Court of Appeals looked at the plain language of C.R.S. § 38-33.3-213 and the purposes of CCIOA as a whole to find that substantial rather than strict compliance with the provision was required. In particular, it noted that statutory interpretation of CCIOA should give way to flexibility where strict adherence to provisions that create uniformity would render title unmarketable. Here, because Watson was the majority owner and board member of the homeowners association, any application that he would have submitted would have been submitted to himself. The declaration also gave him the authority, as the first purchaser from the grantor, to subdivide the garage. Moreover, a map identifying the spaces (though not their dimensions) was recorded. All of this amounted to substantial compliance.

Both parties asserted that the trial court abused its discretion in crafting equitable relief. Perfect Place contended that the court abused its discretion in (1) reforming the deeds of Watson and Quail Street to validly convey property and (2) voiding the 2011 quitclaim deed from Watson to Perfect Place by declaring it a fraudulent conveyance. Semler argued that it was an abuse of discretion for the trial court to increase the size of space E at the expense of space D, thereby benefitting Perfect Place, a party it had found to have unclean hands. The trial court’s reformation of deeds from Quail Street to grantees (that should originally have been from Watson to grantees) was not an abuse of discretion based on the finding that any conveyance errors by the grantors was inadvertent. The trial court also did not abuse its discretion in finding the 2011 quitclaim deed from Watson to Perfect Place was a fraudulent conveyance. Watson believed he was merely correcting a technical defect in title and Perfect Place’s attorney fostered that belief (which was false). Thus the record supported the finding that the quitclaim deed was obtained by “fraud in the factum” and was therefore void. But the court of appeals held that the award of additional area to space E and Perfect Place was an abuse of discretion because this equitable remedy benefitted a party with unclean hands.

Semler also sought attorney fees under the CCIOA. The court found the trial court erred in denying Semler’s request for attorney fees because he was required to defend his title under the provisions of CCIOA.

The judgment quieting title to spaces C and D in Semler was affirmed. The judgment adjusting the boundaries of spaces D and E was reversed. The case was remanded for the trial court to return the boundaries of spaces D and E to their historical dimensions and to determine and award Semler attorney fees.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Reformation of Covenants Agreement Placed Parties in Position with CCIOA-Compliant Agreement

The Colorado Court of Appeals issued its opinion in Arrabelle at Vail Square Residential Condominium Association, Inc. v. Arrabelle at Vail Square LLC on Thursday, August 25, 2016.

Development—Association—Colorado Common Interest Ownership Act—Small Planned Community—Reformation—Special Master.

The Arrabelle at Vail Square (Arrabelle) is a luxury development built and managed by Vail Resorts Development Company and Arrabelle at Vail Square LLC (Vail Resorts). Arrabelle includes multi-million dollar residential condominiums, a boutique hotel, restaurants, retail shops, an ice-skating rink, a spa, parking, and other amenities. At the time of development, Vail Resorts recorded a plat establishing seven separate real estate parcels collectively titled “Lot 1” and “Airspace Lots A-F” at Arrabelle. Vail Resorts then entered into a Reciprocal Easements and Covenants Agreement (RECA) governing those parcels and creating two lots—the Airspace Lot (which would be developed into condominiums) and the Project Lot (the remainder of the property). The RECA establishes benefits, burdens, and cost allocations between both lots, and it regulates the use and enjoyment of both lots. Immediately after recording the RECA, Vail Resorts recorded a condominium plat creating 67 condominiums in the Airspace Lot and a condominium declaration creating the Arabelle at Vail Square Condominium Association, Inc. (Association). Problems soon developed between Vail Resorts and the Association. The Association subsequently filed this action seeking a declaratory judgment allowing it to terminate the RECA or, alternatively, ruling that the RECA was in violation of the Colorado Common Interest Ownership Act (CCIOA), requiring reformation. Among other things, the trial court (1) ruled that Arrabelle is not a small planned community under C.R.S. § 38-33.3-116(2), because it was subject to development rights; (2) reformed the RECA to adjust the cost allocation ratio between the lots; and (3) had a special master draft an amendment to the RECA.

On appeal, Vail Resorts argued that the trial court erred in ruling that Arrabelle is not a “small planned community” under CCIOA § 38-33.3-116(2) because Vail Resorts reserved development rights under the RECA. By definition, the Arrabelle, which contains 67 units, is not a small planned community containing fewer than 20 units under CCIOA.

Vail Resorts also argued that the trial court erred in reforming the cost allocation and RECA and master association documents because those documents contain terms not required by CCIOA. Because the 59.7% cost allocation to the Association did not correspond to the formula established in RECA section 6(b), and because that allocation discriminated in favor of Vail Resorts’ Project Lot without properly disclosing that the allocation substantially benefited that lot, the trial court did not err in reforming RECA section 6(b) pursuant to the Association’s expert’s recommendation based on as-built drawings of the Arrabelle.

Vail Resorts also contended that additional court-ordered reformations to the RECA exceeded the authority of the court. Principles of equity support the trial court’s conclusion that reformations were necessary for the RECA to comply with CCIOA, and the trial court did not abuse its discretion in adopting the special master’s reformations. The court placed Vail Resorts and the Association in the position they would have been had Vail Resorts initially created a CCIOA-compliant common interest community.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Homeowners’ Association’s Removal of Arbitration Provision Invalid Against Builders

The Colorado Court of Appeals issued its opinion in Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. on Thursday, May 7, 2015.

Motion to Compel Arbitration—Construction Defect Action.

Plaintiff association (Vallagio) brought this action against defendants, alleging construction defects in the Vallagio residential development project (Project). The Project was organized as a common interest community under the Colorado Common Interest Ownership Act (CCIOA). Defendant Metro Inverness, LLC (Metro) was the Project’s developer and declarant. Defendant Metropolitan Homes, Inc. was Metro’s manager and the Project’s general contractor. Defendants Krause and Kudla were declarant-appointed members of Vallagio’s board before control of the Vallagio was transferred to unit owners.

The declaration contained a general provision allowing unit owners to amend the declaration by a 67% vote and a consenting vote of the declarant. The right of declarant consent expired after the last unit was sold to an owner other than declarant. There was a mandatory arbitration provision specifically for construction defect claims, which provided that it could never be amended without the written consent of declarant, without regard to whether declarant owned any portion of the Project at the time of the amendment.

In September 2013, after the declarant had turned over control of Vallagio and no longer owned any units, at least 67% of the unit owners voted to amend the declaration to remove the arbitration provision in its entirety. Metro’s consent was not obtained.

Vallagio then filed suit against defendants. Defendants moved to compel arbitration, relying on the original declaration provision, arguing that the amendment removing it was invalid because declarant had not consented. The district court denied the motion to compel arbitration, finding that the declaration had been effectively amended to remove the arbitration provision. This interlocutory appeal followed.

Defendants first argued that it was error to conclude that the declaration’s amendment provisions were ambiguous and to construe that ambiguity against declarant. The Court of Appeals agreed. Based on the plain language of the declaration, the Court held that amendments to the arbitration provision required Metro’s consent. Because that consent was not obtained, the motion to compel arbitration as to Metro should have been granted. The Court also agreed that it was error to conclude that the declarant consent requirement for amendments of the arbitration agreement violated CCIOA and was void and unenforceable.

The district court had found that CCIOA § 38-33.3-302(2) prohibited the consent requirement. This section prohibits restrictions on an association’s power that are “unique to the declarant.” Under this declaration, the unit owners have the power to amend the declaration, and under this section of CCIOA the declarant consent requirement does not impose any limitation on the “power of the association.”

The district court had also found that the declarant consent requirement violated CCIOA § 38-33.3-217 because it effectively required more than a 67% vote of unit owners to amend the declaration. The Court disagreed, finding nothing in that statutory provision prohibiting declarant consent for an amendment, but merely requirements for unit owners’ voting percentages. The Court also found that the consent requirement did not allow control of unit owners’ votes, because 67% of the unit owners had to vote favorably to amend the declaration and that requirement was not altered by the declarant consent provision. The Court also rejected Vallagio’s argument that the consent requirement violated CCIOA § 38-33.3-303(5) by allowing Metro Inverness to control Vallagio after the declarant control period expired. CCIOA provisions regarding declarant consent to an association’s actions were not relevant to the issue here presented.

Vallagio argued that even if Metro could enforce the arbitration provision, the other defendants lacked standing to do so because they were not parties to the declaration. The district court did not address this argument, so the Court remanded for resolution of these issues, in particular, whether the other defendants were third-party beneficiaries to the declaration’s arbitration provision.

Defendants argued that they could rely on the arbitration provisions in individual unit owners’ purchase agreements. Because this issue might arise on remand if the district court finds that the other defendants lack standing to enforce the declaration’s arbitration provision, the Court addressed it. The Court agreed with the ruling that Vallagio was not bound by those individual purchase agreements.

The Court rejected Vallagio’s claims that its Colorado Consumer Protection Act (CCPA) claims are non-arbitrable. The right to a civil action under CCPA § 6-1-113 was not made non-waivable under the statute.

The order was reversed in part and affirmed in part. The case was remanded for an order compelling arbitration of Vallagio’s claims against Metro, and for further proceedings to determine whether the claims against the other defendants must be arbitrated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Frederick Skillern: Real Estate Case Law — Common Interest Communities, Covenants, and CCIOA

Editor’s note: This is Part 2 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick Skillern

Triple Crown at Observatory Village Association v. Village Homes of Colorado
Colorado Court of Appeals, November 7, 2013
2013 COA 150
Construction defect claims; interlocutory review; relationship between revised Nonprofit Corporation Act and the Common Interest Ownership Act.

Arising from alleged construction defects in a common interest community, this interlocutory appeal under C.A.R. 4.2 presents four questions of first impression in Colorado, which the court answers as follows:

  1. Where an association is a nonprofit corporation, the Colorado nonprofit act establishes the time limit for amending its declaration based on action taken without a meeting;
  2. The statutory power to engage in “litigation” under C.R.S. § 38-33.3-302(1)(d) includes arbitration;
  3. C.R.S. § 38-33.3-302(2) does not invalidate the mandatory arbitration provision, because the dispute resolution procedures apply to parties other than the declarant; and
  4. Colorado consumer protection act claims may be subject to mandatory arbitration, because the CCPA does not include a nonwaiver provision.

Village Homes, a residential developer, built homes subject to recorded covenants, and thereby created an association, Triple Crown. Triple Crown was set up as a nonprofit corporation under C.R.S. §§ 7-121-101, et seq. In the declaration of covenants, the developer included a dispute resolution procedure for claims arising from the design or construction of homes in the Triple Crown development. The declaration required that construction defect claims be arbitrated under American Arbitration Association rules.

In 2012, residents began a campaign to amend the declaration by repealing the arbitration clause. Unfortunately, it took more than sixty days to gather the votes to amend the covenants. After sixty days, 48% of the members had cast votes in favor of revocation. After another sixty days, the Association had obtained the required 67% of votes to effect the amendment. The Association recorded the amendment, and then brought this action against Village Homes, alleging negligent construction, Colorado Consumer Protection Act (CCPA) violations, and breach of fiduciary duties.

Village Homes moved to dismiss for lack of jurisdiction, based on the arbitration clause in the declaration. It argued that the amendment repealing the arbitration provision was ineffective because the Association failed to amend Article 14 within the time limits in the Nonprofit Corporations Act, specifically C.R.S. § 7-127-107(2), which deals with time limits for actions taken without a meeting. The trial court granted the motion, dismissed the case, and ordered the case to arbitration. This order is affirmed on appeal. The court holds that when an association amends its declaration without a meeting under the CCIOA, the association, if it is a nonprofit corporation, must comply with the 60-day time limit provided in section 7-127-107.

The Court also agreed that the Common Interest Association Act gives power to associations to “institute, defend, or intervene in litigation or administrative proceedings . . . on the matters affecting the common interest community.” However, the court reasons that “litigation” includes both civil actions in court and arbitrations. It holds that the mandatory arbitration clause did not infringe on the association’s statutory power to “institute litigation.”

The association then argues that CCIOA § 38-33.3-302(2) invalidated Article 14. The trial court rejected this argument. The court agreed with the trial court, finding that the CCIOA section forbids only restrictions unique to the declarant. Article 14 controlled disputes between all parties.

The trial court rejected the association’s argument that its CCPA claims should not be subject to mandatory arbitration, because CCPA provisions by statute “shall be available in a civil action.” The court holds that such a right can be waived, and that Article 14 of the Triple Crown declaration was such a waiver.

 

Ryan Ranch Community Assn., Inc. v. Kelley
Colorado Court of Appeals, March 27, 2014
2014 COA 37M
Liability for homeowner association assessments; annexation; developer side agreement.

This is an interesting situation involving a developer, a side agreement with another landowner to exempt that owner’s land from subdivision covenants, and the annexation provisions of the CCIOA. As a prequel, the following general principles stated in the dissent by Judge Terry set the stage.

  • “Provisions of this article may not be varied by agreement. . . . A declarant may not . . . use any . . . device to evade the limitations or prohibitions of this article or the declaration.” C.R.S. § 38-33.3-104. . . .
  • Members are not “entitled to set up agreements reached with the developer as defenses to the obligation to pay assessments . . . . [T]he developer does not have the power to waive the assessment obligations imposed on property within the common-interest community.” Restatement (Third) of Property: Servitudes, 6.5, cmt. e (2000).

Nice notions, but the developer here found the approval process for a second filing of his development sometimes required some last-minute adjustments. He had a side agreement with Kelley, an owner of a minority of land to be included in a second filing of a large development, to keep the “Kelley Lots” from control of any covenants or new HOAs. At the late stages of approval of the new filing, however, the developer included Kelley’s land in the filing – Kelley signed the plat – and sold the lots in bulk to Ryland.

Ryland, going along with the deal, sold the Kelley lots immediately back to developer, and the developer then deeded the land to Kelley. Kelley sold the lots to another builder, who sold homes to consumers. Several years go by, during which the consumers enjoy neighborhood improvements, and then the HOA takes action to collect assessments – including back fees totaling $70,000. The homeowners had constructive notice of the plat and the declaration from exceptions to their deed warranties. In defense, the homeowners and Kelley argued that their lots had not been appropriately “annexed” into the association. The decision goes through the statutes, and two judges reverse the trial court and hold that the requirements for annexation had not been met.

The reasoning of the majority goes like this. To exercise a development right under CCIOA, a developer must comply with the plat and map requirements of C.R.S. § 38-33.3-209 and the recording requirements of C.R.S. § 38-33.3-217(3). The homeowner defendants argue that to exercise a reserved development right, CCIOA requires the recording of an amendment to the declaration that must contain certain information and be properly indexed. The court agrees that the recording of an Official Development Plan and the declaration was not sufficient to meet these requirements. The original declaration cannot logically be considered an amendment to itself such that it could annex the Kelley Lots. Moreover, nothing was denominated as an amendment, nothing assigned identifying numbers to newly created units, there was no reallocation of interests among all units, and no common elements were described. Nothing on the Filing 2 plat map subjected the described property to the Declaration.

On the other hand, the dissent notes, the Declaration provides that the additional lots will be annexed into the HOA when (1) a plat for additional properties to be annexed is recorded, and (2) either an annexation form is recorded, or a deed for real property within the plat is conveyed from Ryland to a third party other than Ryland. “On November 17, 2005, Ryland recorded the Filing 2 plat, which included the Kelley Lots. On December 20, 2005, Ryland conveyed the Kelley Lots back to the developer by deed. These two actions — filing of the plat and conveyance by deed — fulfilled the requirements of the Declaration to annex real property to the HOA.”

CCIOA fans and developers’ counsel will want to dive into this discussion — and avoid those shortcuts.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Lots Annexed by Development Were Not Annexed in Compliance with CCIOA

The Colorado Court of Appeals issued its opinion in Ryan Ranch Community Association, Inc. v. Kelley on Thursday, March 27, 2014.

Summary Judgment—Homeowners Association Assessments.

In early 2003, Charles Ochsner verbally agreed to sell John Kelley seven lots (Kelley Lots) of the Ryan Ranch property. In summer 2003, Kelley learned that Ochsner was going to sell the majority of the Ryan Ranch property to the Ryland Group, Inc. (Ryland), the entity that would eventually create Ryan Ranch Community Association, Inc. (HOA) and record the Declaration of Covenants, Conditions, and Restrictions (Declaration). Kelley confirmed with Ochsner and Ryland the verbal agreement to purchase and received assurances that Ryland was not purchasing the Kelley Lots. The parties agreed that the Kelley Lots would not be included in the HOA.

In September 2003, Ryland and Ochsner signed a contract for the sale of parcels in Ryan Ranch to Ryland in two phases, which specifically excluded the Kelley Lots. In October 2003, Ochsner and Kelley and his wife signed a contract for the Kelley Lots. They also signed an agreement providing that (1) the Kelley Lots would not be subject to the maintenance obligations of the HOA to be formed by Ryland, and (2) Ryland would record covenants excluding them from the HOA. No such exclusion covenants were ever recorded.

The 2003 contract excluding the Kelley Lots was reaffirmed by Ochsner and the Kelleys in May 2005. However, when the Ryan Ranch Filing 2 plat map was recorded on November 17, 2005, it included the Kelley Lots. The December 20, 2005 reconveyance deed conveying the Kelley Lots from Ryland back to Ochsner was recorded, as was the Ochsner deed conveying the Kelley Lots to the Kelleys. Ryland never intended to annex the Kelley Lots into the Ryan Ranch community.

In June 2006, the Kelleys sold one of the Kelley Lots to a contractor who constructed a home and sold the lot to the Zimmermans. In September 2010, the HOA asserted that the Kelley Lots had been “automatically annexed” to the HOA and sought to recover past assessments, penalties, and fees from the Kelleys and the Zimmermans. Defendants counterclaimed for a declaratory judgment that Ryland had not annexed the Kelley Lots in compliance with the Colorado Common Interest Ownership Act (CCIOA) or the Declaration, and asserted principles of equitable conversion operated to preclude the transfer of the Kelley Lots from Ochsner to Ryland.

The HOA moved for summary judgment and defendants requested the court to determine as a matter of law that the Declaration did not apply to their properties. The trial court granted the HOA’s motion and denied defendants’ motion.

On appeal, defendants’ argued it was error to grant summary judgment to the HOA because: (1) the Kelley Lots were not annexed in compliance with CCIOA; (2) Ryland did not annex the Kelley Lots in compliance with the Declaration; and (3) Ryland did not “own” the Kelley Lots at the time of the alleged annexation. The Court of Appeals agreed with the first argument and did not address the others.

CCIOA was the controlling statute in this case and prevails over the Declaration. To exercise a development right under CCIOA, a developer must comply with the plat and map requirements of CRS §38-33.3-209 and the recording requirements of CRS §38-33.3-217(3).

Defendants argued that to exercise a reserved development right, CCIOA requires the recording of an amendment to the declaration that must contain certain information and be properly indexed. The Court agreed that the recording of the Official Development Plan and the Declaration was not sufficient to meet these requirements. The original Declaration cannot logically be considered an amendment to itself such that it could annex the Kelley Lots. Moreover, nothing was denominated as an amendment, nothing assigned indentifying numbers to newly created units, there was no reallocation of interests among all units, and no common elements were described. Nothing on the Filing 2 plat map subjected the described property to the Declaration.

The Court’s determination resolved the HOA’s claims for breach of contract, recovery of unpaid assessments, and foreclosure of liens. However, it did not resolve the unjust enrichment claim. On remand, the trial court was ordered to revisit that claim. Attorney fees were awarded to defendants as prevailing parties under the Declaration and CRS §38-33.3-123(1)(c).

Summary and full case available here.

HB 14-1254: Requiring Unit Associations To Disclose Fees Charged by Association Manager

On February 3, 2014, Rep. Jeanne Labuda and Sen. David Balmer introduced HB 14-1254 – Concerning a Requirement to Disclose Fees Charged to a Unit Owners’ Association by a Community Association ManagerThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a licensed community association manager who performs services for a homeowners’ association (HOA) through employees or subcontractors to fully disclose to the HOA, during contract negotiations and annually thereafter, all fees and charges that the manager will bill to the HOA for services performed by those employees or subcontractors.

The bill passed out of the House on February 26. On March 21, the Senate adopted the bill on 2nd Reading with amendments.

Since this summary, the bill passed 3rd Reading in the Senate.

SB 14-140: Requiring HOAs to be Subject to Entire Colorado Common Interest Community Act in Order to Foreclose Lien for Assessments

On Monday, January 27, 2014, Sen. Owen Hill introduced SB 14-140 – Concerning a Prohibition on the Exercise of Lien Rights Under the “Colorado Common Interest Ownership Act” by Unit Owners’ Associations that Do Not Elect to be Covered by the Entire Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires that, in order to establish or foreclose a lien for assessments, a homeowners’ association must be subject to the entire “Colorado Common Interest Ownership Act.”

On Feb. 17, the State, Veterans, & Military Affairs Committee heard testimony and considered the bill for committee discussion only; the bill will be put back on the calendar for action in the near future.

Since this summary, the State, Veterans, & Military Affairs Committee postponed the bill indefinitely.

Colorado Court of Appeals: Homeowners’ Association Must Follow Nonprofit Corporation Rules When Amending Declaration Without a Meeting

The Colorado Court of Appeals issued its opinion in Triple Crown at Observatory Village Association, Inc. v. Village Homes of Colorado, Inc. on Thursday, November 7, 2013.

Construction Defect—Interlocutory Review—Revised Nonprofit Corporation Act Relation to Colorado Common Interest Ownership Act—Consumer Protection Act.

Triple Crown at Observatory Village (Triple Crown) is a common interest community organized under the Colorado Common Interest Ownership Act (CCIOA). The developer of Triple Crown, Village Homes of Colorado, Inc. (Village Homes), was Triple Crown’s declarant under CCIOA § 38-33.3-103(12). Village Homes drafted and recorded Triple Crown’s Declaration of Covenants, Conditions, and Restrictions (Declaration). The Declaration created the Triple Crown at Observatory Village Association, Inc. (Association). It was organized as a nonprofit corporation under the Colorado Revised Nonprofit Corporation Act (CRNCA).

Article 14 of the Declaration established a dispute resolution procedure for claims arising from the design or construction of Triple Crown. It required arbitration of claims under American Arbitration Association rules if good faith negotiation and mediation efforts were unsuccessful.

On January 14, 2012, the Association began collecting votes from its members to revoke Article 14. After sixty days, 48% of the members had cast votes in favor of revocation. After another sixty days, the Association had obtained the required 67% of votes to revoke Article 14. The Association recorded the amendment revoking Article 14. The Association then brought this action against Village Homes and several of its principals and employees (collectively, respondents), alleging negligent construction, Colorado Consumer Protection Act (CCPA) violations, and breach of fiduciary duties.

Respondents moved to dismiss for lack of jurisdiction, citing the mandatory arbitration provision in Article 14. They argued that because the Association had not amended Article 14 within the time limits in the CRNCA, they were still bound by the Article 14 dispute resolution procedures. The trial court granted the motion, dismissed the case, and ordered the parties to follow Article 14.

The trial court ruled that when an association amends its declaration without a meeting under CCIOA, the association must comply with the sixty-day time limit provided in CRNCA § 7-127-107. The Court of Appeals agreed. Because the Association did not comply, the amendment was ineffective.

The Court also agreed that CCIOA established the power of unit owners’ associations to “[i]nstitute, defend, or intervene in litigation or administrative proceedings . . . on the matters affecting the common interest community” and that “litigation” includes both judicial proceedings and arbitrations. Therefore, the mandatory arbitration provision did not infringe on the Association’s statutory power to institute litigation.

The Association argued that CCIOA § 38-33.3-302(2) invalidated Article 14. The trial court rejected this argument. The Court agreed with the trial court, finding that the CCIOA section forbids only restrictions unique to the declarant. Article 14 controlled disputes between all parties.

The trial court rejected the Association’s argument that its CCPA claims were not subject to mandatory arbitration, because CCPA provisions “shall be available in a civil action. The Court agreed that such a right can be waived, and Article 14 was such a waiver. The trial court’s order was affirmed and the case was remanded.

Summary and full case available here.