When the Planned Development/Plat differs from the CC&R's

JenniferB14 (Colorado)
Posts: 148

Posted:

Here in Colorado the CCIOA state law defines the community Plat and the CC&Rs as an integrated document... essentially one in of the same. However, the Declaration defines the Planned Development and the Plat as separate documents. The Declaration also states the HOA is obligated to follow the duties and specifications imposed on the community as set forth in the Planned Development (specifically defined). Thus if a covenant is amended by vote, and actually takes away a right permitted in the Planned Development, wouldn't the Planned Development have to be modified with the county to have a legal impact? Not to mention the vote for this amendment per what the declaration states should be Unanimous Consent, however the attorney is supporting 67% to pass the amendment (the amendment is specifically for a use restriction, not a basic covenant. The attorney is trying to challenge that this amendment is not a use restriction, though the use restrictions are clearly listed in the Declaration, and the land use is supported by the county documents).

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Jennifer ... You are not making sense with regards to your statement. In CO the CCR's and Plat both are filed with the County Records. The CCR's can be changed with a proper vote of homeowners and the Amendment filed with the County Records to become legal. If not filed with County Records via proper vote then would not yet be legal. Also, Colorado State Law regulates the consent for amending CCR's such as:

38-33.3-217. Amendment of declaration

(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent. The declaration may specify a smaller percentage than a simple majority only if all of the units are restricted exclusively to nonresidential use. Nothing in this paragraph (a) shall be construed to prohibit the association from seeking a court order, in accordance with subsection (7) of this section, to reduce the required percentage to less than sixty-seven percent.

Therefore, if your declaration states "Unanimous Consent" that would be superseded by the State Statute which states "NOT to exceed sixty-seven percent ...". However, if you are under Declarant (a.k.a. Developer Control) then unless the Developer "Reserved" the right to make any such amendment they would need to have 67% of Developer votes AND 67% of Owners OTHER than Developer. If the Developer did reserve the right to make the change and which would have been fully disclosed to owners and their secured creditors prior to purchase, then the developer can make the change without any owners votes. NOTE: The Developer cannot reserve the right to change everything in the CCR's. We found out in our past HOA litigation that type provision violates Real Estate Statute of Frauds because the Grantor (developer) selling to Grantee (us owners) cannot change a contract at will. Items to be changed must be noted and fully disclosed with potential changes.

If this does not answer your question ... you need to restate your question better.