Colorado § 38-33.3-120 - Amendments to preexisting governing instruments.

§ 38-33.3-120. Amendments to preexisting governing instruments.

(1) In the case of amendments to the declaration, bylaws, or plats and maps of any common interest community created within this state before July 1, 1992, which has not elected treatment under this article pursuant to section 38-33.3-118:

(a) If the substantive result accomplished by the amendment was permitted by law in effect prior to July 1, 1992, the amendment may be made either in accordance with that law, in which case that law applies to that amendment, or it may be made under this article; and

(b) If the substantive result accomplished by the amendment is permitted by this article, and was not permitted by law in effect prior to July 1, 1992, the amendment may be made under this article.

(2) An amendment to the declaration, bylaws, or plats and maps authorized by this section to be made under this article must be adopted in conformity with the procedures and requirements of the law that applied to the common interest community at the time it was created and with the procedures and requirements specified by those instruments. If an amendment grants to any person any rights, powers, or privileges permitted by this article, all correlative obligations, liabilities, and restrictions in this article also apply to that person.

(3) An amendment to the declaration may also be made pursuant to the procedures set forth in section 38-33.3-217 (7).

Source: L. 91: Entire article added, p. 1713, § 1, effective July 1, 1992. L. 2002: (3) added, p. 767, § 2, effective August 7.

ANNOTATION

There is a two-step process in reviewing the validity of an amendment to a plat of a common interest community created before July 1, 1992. First, the amendment's validity as a question of substance is considered under subsection (1) and then the amendment's validity as a question of procedure is considered under subsection (2). Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006).

Section 38-33.3-217 (4)(a) contains limited exceptions to subsection (1)(a). 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 § 38-33.3-217 (4)(a) allows the declaration to require greater than a sixty-seven percent vote. Therefore, a pre-1992 declaration's requirement for unanimous consent was properly applied to that provision despite the adoption of amendments to other provisions by a two-thirds vote, in accordance with current law. 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.