Title 38 – Property – Real and Personal
Article 33.3 – Colorado Common Interest Ownership Act
Amendment of declaration
38-33.3-217. Amendment of declaration
Source: L. 91: Entire article added, p. 1727, § 1, effective July 1, 1992. L. 93: (1) amended, p. 649, § 14, effective April 30. L. 98: (1) and (4) amended and (4.5) added, p. 482, § 10, effective July 1. L. 99: (1) amended and (7) added, p. 692, § 1, effective May 19; (1) amended, p. 629, § 38, effective August 4. L. 2005: (1) amended, p. 1380, § 8, effective June 6. L. 2006: (1) and (4) amended, p. 1219, § 8, effective May 26.
Amendments to subsection (1) by Senate Bill 99-221 and House Bill 99-1360 were harmonized.
Requiring a declarant’s consent to amend a declaration does not violate subsection (1).The declarant consent requirement does not exceed the sixty-seven percent limit on the maximum number of unit owners required to amend a declaration; rather, it is a separate and additional requirement that is permissible under the statute. Vallagio at Inverness v. Metro. Homes, 2015 COA 65, 412 P.3d 709, aff’d, 2017 CO 69, 395 P.3d 788.
Consent of lenders is also a permissible requirement.DA Mtn. Rentals v. Lodge at Lionshead, 2016 COA 141, 409 P.3d 564.
When declaration may require more than sixty-seven percent maximum percentage.Changes in the allocated interests of a unit, for example, “the undivided interests in and to the general common elements appurtenant to each unit”, are among those for which subsection (4)(a) allows the declaration to require greater than a sixty-seven percent vote. Therefore, the declaration’s requirement for unanimous consent applies to this provision despite the adoption of amendments to other provisions by a two-thirds vote. DA Mtn. Rentals v. Lodge at Lionshead, 2016 COA 141, 409 P.3d 564; Francis v. Aspen Mtn. Condo. Ass’n, 2017 COA 19, 401 P.3d 125.
The phrase in subsection (4)(a), “or any larger percentage the declaration specifies”,recognizes the continued validity of any pre-Colorado Common Interest Ownership Act declaration requirement for a voting threshold in excess of sixty-seven percent in order to change the allocated interest of a unit. Such alterations of property interests are much more consequential than the goals of efficiency and flexibility that are deemed sufficiently protected by the sixty-seven percent threshold referenced in subsection (1)(a)(I). Francis v. Aspen Mtn. Condo. Ass’n, 2017 COA 19, 401 P.3d 125.
Because subsections (4) and (4.5) use the term “any unit”, rather than “all units”,and regardless of what owner approval percentage may be required procedurally, substantively subsections (4) and (4.5) permit changes to building and access envelopes of less than all the lots in a common interest community. Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006).
Although subsection (4.5) governs situations where homeowners would like to change an enumerated use to which a lot is restricted, it does not operate to precludehomeowners from seeking to create a new use restriction or to remove a specifically permitted land use pursuant to the terms of a declaration. Good v. Bear Canyon Ranch Ass’n, 160 P.3d 251 (Colo. App. 2007).
This section contains no time limit, but time limits in corporate law may apply.Where an association was organized as a nonprofit corporation, the sixty-day time period specified in § 7-127-107 of the nonprofit corporation statutes governed the procedure for adoption of a proposal to amend a declaration without a meeting. Triple Crown v. Vill. Homes of Colo., 2013 COA 150M, 328 P.3d 275.
Subsection (7) incorporates all applicable meeting notice requirements.Where the proposed amendments were allegedly discussed at a meeting, but the notice of that meeting was not sufficient under § 38-33.3-308 (1), the court could not find that “[t]he association [had] complied with all requirements of this subsection (7).” Tyra Summit Condos. II Ass’n, Inc. v. Clancy, 2017 COA 73, 413 P.3d 352.