Colorado § 38-33.3-205 - Contents of declaration.

§ 38-33.3-205. Contents of declaration.

(1) The declaration must contain:

(a) The names of the common interest community and the association and a statement that the common interest community is a condominium, cooperative, or planned community;

(b) The name of every county in which any part of the common interest community is situated;

(c) A legally sufficient description of the real estate included in the common interest community;

(d) A statement of the maximum number of units that the declarant reserves the right to create;

(e) In a condominium or planned community, a description, which may be by plat or map, of the boundaries of each unit created by the declaration, including the unit's identifying number; or, in a cooperative, a description, which may be by plat or map, of each unit created by the declaration, including the unit's identifying number, its size or number of rooms, and its location within a building if it is within a building containing more than one unit;

(f) A description of any limited common elements, other than those specified in section 38-33.3-202 (1)(b) and (1)(d) or shown on the map as provided in section 38-33.3-209 (2)(j) and, in a planned community, any real estate that is or must become common elements;

(g) A description of any real estate, except real estate subject to development rights, that may be allocated subsequently as limited common elements, other than limited common elements specified in section 38-33.3-202 (1)(b) and (1)(d), together with a statement that they may be so allocated;

(h) A description of any development rights and other special declarant rights reserved by the declarant, together with a description sufficient to identify the real estate to which each of those rights applies and the time limit within which each of those rights must be exercised;

(i) If any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with:

(I) Either a statement fixing the boundaries of those portions and regulating the order in which those portions may be subjected to the exercise of each development right or a statement that no assurances are made in those regards; and

(II) A statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;

(j) Any other conditions or limitations under which the rights described in paragraph (h) of this subsection (1) may be exercised or will lapse;

(k) An allocation to each unit of the allocated interests in the manner described in section 38-33.3-207;

(l) Any restrictions on the use, occupancy, and alienation of the units and on the amount for which a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation, or casualty loss to the unit or to the common interest community or on termination of the common interest community;

(m) The recording data for recorded easements and licenses appurtenant to, or included in, the common interest community or to which any portion of the common interest community is or may become subject by virtue of a reservation in the declaration;

(n) All matters required by sections 38-33.3-201, 38-33.3-206 to 38-33.3-209, 38-33.3-215, 38-33.3-216, and 38-33.3-303 (4);

(o) Reasonable provisions concerning the manner in which notice of matters affecting the common interest community may be given to unit owners by the association or other unit owners;

(p) A statement, if applicable, that the planned community is a large planned community and is exercising certain exemptions from the "Colorado Common Interest Ownership Act" as such a large planned community;

(q) In a large planned community:

(I) A general description of every common element that the declarant is legally obligated to construct within the large planned community together with the approximate date by which each such common element is to be completed. The declarant shall be required to complete each such common element within a reasonable time after the date specified in the declaration, unless the declarant, due to an act of God, is unable to do so. The declarant shall not be legally obligated with respect to any common element not identified in the declaration.

(II) A general description of the type of any common element that the declarant anticipates may be constructed by, maintained by, or operated by the association. The association shall not assess members for the construction, maintenance, or operation of any common element that is not described pursuant to this subparagraph (II) unless such assessment is approved by the vote of a majority of the votes entitled to be cast in person or by proxy, other than by declarant, at a meeting duly convened as required by law.

(2) The declaration may contain any other matters the declarant considers appropriate.

(3) The plats and maps described in section 38-33.3-209 may contain certain information required to be included in the declaration by this section.

(4) A declarant may amend the declaration, a plat, or a map to correct clerical, typographical, or technical errors.

(5) A declarant may amend the declaration to comply with the requirements, standards, or guidelines of recognized secondary mortgage markets, the department of housing and urban development, the federal housing administration, the veterans administration, the federal home loan mortgage corporation, the government national mortgage association, or the federal national mortgage association.

Source: L. 91: Entire article added, p. 1716, § 1, effective July 1, 1992. L. 93: (1)(h) and (1)(n) amended, p. 647, § 10, effective April 30. L. 94: (1)(p) added, p. 2847, § 3, effective July 1. L. 95: (1)(q) added, p. 237, § 3, effective July 1. L. 98: (1)(h) amended and (4) and (5) added, p. 480, § 4, effective July 1.

ANNOTATION

Law reviews. For article, "In 'Case' You Missed It: Recent Real Estate Case Law Highlights", see 50 Colo. Law. 36 (Apr. 2021). For article, "The State of Short-Term Rentals in Colorado", see 51 Colo. Law. 34 (Apr. 2022).

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. Where an accompanying plat bore the declarant's signature, but did not contain the information required by this section such as the description of any development rights reserved by the declarant or notice procedures pertaining to covenant violations, the filing was insufficient. Abril Meadows Homeowner's Ass'n v. Castro, 211 P.3d 64 (Colo. App. 2009).

Airplane runway was not subject to the declaration of restrictions for a subdivision because it was not a common area included in the legal description of the subdivision. Accordingly, recording data for a retained easement across the runway was not required by subsection (1)(m). Brush Creek Airport, L.L.C. v. Avion Park, L.L.C., 57 P.3d 738 (Colo. App. 2002).

Development rights in a declaration that does not include a time limitation are void ab initio. Subsection (1)(h) is unambiguous in requiring a time limitation, and failure to include such a limitation is not an insubstantial defect that may be overlooked under § 38-33.3-203 (4). Silverview at Overlook, LLC v. Overlook at Mt. Crested Butte Ltd. Liab. Co., 97 P.3d 252 (Colo. App. 2004).

Because property owner failed to impose any time limit in declaration, property owner failed to properly reserve its development rights. Where a provision is automatically renewable indefinitely, the provision cannot be considered a time limit. Miller v. Curry, 203 P.3d 626 (Colo. App. 2009).

A declarant may withhold properties from the common interest community and reserve the right to incorporate them gradually over time if the declaration clearly describes the property subject to reserved development rights. Pulte Home Corp. v. Countryside Cmty. Ass'n, Inc., 2016 CO 64, 382 P.3d 821.

If the declaration does not exclude some of the property initially, all of the property is encumbered by the covenants, conditions, and restrictions as soon as the community is formed. FD Interests v. Fairways at Buffalo Run, 2019 COA 148, 490 P.3d 496.

Where the declaration included all property in the attached legal description, all of the property other than the units was rendered "common elements" upon formation of the community. FD Interests v. Fairways at Buffalo Run, 2019 COA 148,490 P.3d 496.