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resources / Statutes / Colorado Common Interest Ownership Act / §38-33.3-123

§38-33.3-123 Enforcement – limitation

Title 38 – Property – Real and Personal

Article 33.3 – Colorado Common Interest Ownership Act

Enforcement – limitation

38-33.3-123. Enforcement – limitation

(1)

(a) If any unit owner fails to timely pay assessments or any money or sums due to the association, the association may require reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure without the necessity of commencing a legal proceeding.
(b) For any failure to comply with the provisions of this article or any provision of the declaration, bylaws, articles, or rules and regulations, other than the payment of assessments or any money or sums due to the association, the association, any unit owner, or any class of unit owners adversely affected by the failure to comply may seek reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure to comply, without the necessity of commencing a legal proceeding.
(c) In any civil action to enforce or defend the provisions of this article or of the declaration, bylaws, articles, or rules and regulations, the court shall award reasonable attorney fees, costs, and costs of collection to the prevailing party.
(d) Notwithstanding paragraph (c) of this subsection (1), in connection with any claim in which a unit owner is alleged to have violated a provision of this article or of the declaration, bylaws, articles, or rules and regulations of the association and in which the court finds that the unit owner prevailed because the unit owner did not commit the alleged violation:

(I) The court shall award the unit owner reasonable attorney fees and costs incurred in asserting or defending the claim; and
(II) The court shall not award costs or attorney fees to the association. In addition, the association shall be precluded from allocating to the unit owner’s account with the association any of the association’s costs or attorney fees incurred in asserting or defending the claim.

(e) A unit owner shall not be deemed to have confessed judgment to attorney fees or collection costs.

(2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

History


Source: L. 91: Entire article added, p. 1714, § 1, effective July 1, 1992. L. 96: Entire section amended, p. 1087, § 1, effective May 23. L. 2005: (1) amended, p. 1376, § 5, effective January 1, 2006. L. 2006: (1)(c) amended, p. 1217, § 4, effective May 26.

State Notes

ANNOTATION

The express language of this section requires a plaintiff to prevail on a claim to obtain an award of attorney feesand no fees will be awarded where the merits of a defendant’s affirmative defenses have not yet been adjudicated. Dunne v. Shenandoah Homeowners Ass’n, Inc., 12 P.3d 340 (Colo. App. 2000).

There is no “prevailing party” upon dissolution of a preliminary injunction,because at that point there has not yet been a resolution on the merits. DeJean v. Grosz, 2015 COA 74, 412 P.3d 733.

Where HOA prevailed on a significant issue against the declarant,the HOA was entitled to have the trial court determine and award it reasonable attorney fees and costs under this section. FD Interests v. Fairways at Buffalo Run, 2019 COA 148, — P.3d —.

Even assuming a trial court could determine that an overall case ended in a tie,subsection (1)(c) requires a court to award fees “for each claim…to the party prevailing on such claim”. Therefore, the statutory claim-by-claim approach differs from the C.R.C.P. 54(d) analysis of multiple claims cases. Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006).

By its express language this section does not apply to tort claims in which the plaintiff’s primary purpose was not to enforce the covenants contained in the declarationbut was to secure a damage award. Colo. Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718 (Colo. App. 2001).

As a prevailing party on the defendant’s claim for an assessment lien based on property damages,plaintiff is entitled to attorney fees and costs for that aspect of the case. Hallmark Bldg. Co. v. Westland Meadows Owners Ass’n, Inc., 983 P.2d 170 (Colo. App. 1999).

Where a civil action is brought to enforce the covenants of a property owners’ association,both elements of subsection (1)(c) are met. Cody Park v. Harder, 251 P.3d 1 (Colo. App. 2009).

The plain language of subsection (1)(c) does not require a prevailing party to be a unit owner to collect attorney fees,and the omission of the language from this subsection, in light of its inclusion in other subsections of the statute, evidences the general assembly’s intent not to limit recovery of attorney fees under that subsection to unit owners. Cody Park v. Harder, 251 P.3d 1 (Colo. App. 2009).

No award of attorney fees to condominium association on appeal under C.A.R. 39.5 and this section.Subsection (1)(c) provides for recovery of attorney fees only in actions to “enforce or defend the provision of this article or of the declaration, bylaws, articles, or rules and regulations”. Condominium association defended against purchasers’ breach of contract action and sought declaratory action that contract was void. Neither purchasers’ claims nor associations’ counterclaims were to enforce or defend the article; thus, the statute does not apply. Platt v. Aspenwood Condo. Ass’n, 214 P.3d 1060 (Colo. App. 2009).

Allocation of liability for 30percnt; of attorney fees award to owner of lot improperwhere owner did not attempt to use an easement that violated restrictive covenants, but merely refused to vacate the easement pending a legal determination as to its validity and where co-defendant actually commenced building a road in reliance on the easement. Allocation of liability for attorney fees must be commensurate with failure to comply with covenants and remand to the trial court for reapportionment of liability for attorney fees was necessary. Buick v. Highland Meadow Estates, 21 P.3d 860 (Colo. 2001).

Statute of limitations defense was not preserved on appealwhere defendants raised the defense in their answer to plaintiffs’ second amended complaint and in the trial management order, but failed to bring the defense to the court’s attention in opening or closing statements, in an oral motion for a directed verdict, or in a motion for a new trial. Highland Meadows Estates v. Buick, 994 P.2d 459 (Colo. App. 1999), aff’d in part and rev’d in part on other grounds, 21 P.3d 860 (Colo. 2001).

Applied in 

Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006); Abril Meadows Homeowner’s Ass’n v. Castro, 211 P.3d 64 (Colo. App. 2009).