Colorado § 38-33.3-201 - Creation of common interest communities.

§ 38-33.3-201. Creation of common interest communities.

(1) (a) A common interest community may be created pursuant to this article 33.3 only by recording a declaration executed in the same manner as a deed and, in a cooperative, by conveying the real estate subject to that declaration to the association. The declaration must be:

(I) Executed by or with the express written authorization of the owner or owners of the real estate that is to be included in the common interest community, as shown by the records of the county clerk and recorder's office of the county where the real estate is located;

(II) Recorded in every county in which any portion of the common interest community is located;

(III) Indexed in the grantee's index in the name of the common interest community and in the name of the association; and

(IV) Indexed in the grantor's index in the name of each person executing the declaration.

(b) No common interest community is created until the plat or map for the common interest community is recorded.

(2) In a common interest community with horizontal unit boundaries, a declaration, or an amendment to a declaration, creating or adding units shall include a certificate of completion executed by an independent licensed or registered engineer, surveyor, or architect stating that all structural components of all buildings containing or comprising any units thereby created are substantially completed.

Source: L. 91: Entire article added, p. 1715, § 1, effective July 1, 1992. L. 93: Entire section amended, p. 646, § 8, effective April 30. L. 2024: (1) amended, (HB 24-1383), ch. 182, p. 983, § 2, effective August 7.

Cross references: For the legislative declaration in HB 24-1383, see section 1 of chapter 182, Session Laws of Colorado 2024.

ANNOTATION

Law reviews. For article, "Construction Defect Statutes of Limitation and Repose Update, Part I", see 49 Colo. Law. 26 (Dec. 2020).

Since a declaration must be executed in the same manner as a deed, it must be signed by the declarant to properly establish a homeowners' association. The declarant's signature on an accompanying document, such as a plat, is not sufficient. Abril Meadows Homeowner's Ass'n v. Castro, 211 P.3d 64 (Colo. App. 2009).

Actual awareness or knowledge of the declaration by a person sought to be bound by it cannot compensate for the absence of a signed declaration. Abril Meadows Homeowner's Ass'n v. Castro, 211 P.3d 64 (Colo. App. 2009).

Common interest community not created by implication. Recorded plat, deeds, and subdivision agreement, taken together, do not create a common interest community when the documents do not obligate homeowners to pay expenses related to community-owned space, do not expressly create a homeowners' association, and lack too many statutorily prescribed components. McMullin v. Hauer, 2018 CO 57, 420 P.3d 271.

For one or more documents to create a common interest community and amount to a declaration, they must at least (1) establish an obligation to pay for various expenses associated with common property and (2) attach that obligation to individually owned property. Where a declaration of covenants, conditions, and restrictions for a community association did not alone, or with the corresponding plat, encumber any individually owned property with an obligation to pay for maintenance of other property, the document was not a declaration for the purposes of this section and a common interest community was not created. Pulte Home Corp. v. Countryside Cmty. Ass'n, Inc., 2016 CO 64, 382 P.3d 821.

A pre-Colorado Common Interest Ownership Act common interest community exists when (1) individual properties are (2) properly burdened with a servitude that imposes an obligation to either (a) pay for the use of or contribute to the maintenance of commonly held or enjoyed property or (b) pay dues or assessments to an association that provides a service or enforces a servitude on commonly held or enjoyed property. Frisco Lot 3 LLC v. Giberson Ltd. P'ship, 2024 COA 125, 564 P.3d 1061.