v. Brooks Towers Residences
2021 COA 87
Colo. Ct. App.2021Background
- Brooks Towers was recorded as a condominium under the older Condominium Ownership Act (COA) in 1979; a declarant’s Amended and Restated Declaration was recorded in 1995, renaming the project, changing unit counts and allocations, and referencing the Colorado Common Interest Ownership Act (CCIOA).
- The 1995 declaration set unit ownership percentages and required assessments in proportion to those percentages; Unit 3D (purchased by the Accettas in 2005) has a relatively high percentage and correspondingly higher assessments.
- The Accettas sued in 2017 seeking a declaratory judgment that the 1995 declaration’s allocation provisions violate CCIOA (asserting violations of §§ 38-33.3-207(2), 38-33.3-112(1), and 38-33.3-113) and asserting common-law claims (breach of fiduciary duty, conversion, unjust enrichment, negligence).
- The trial court granted summary judgment to the Association, concluding Brooks Towers remained a pre‑existing community created in 1979 and was not governed “in its entirety” by CCIOA because no election under § 38-33.3-118 was made; it also dismissed the Accettas’ common-law claims against the Association.
- On appeal, the court affirmed: (1) a recorded amended declaration that references CCIOA does not substitute for the statutory election procedures in § 38-33.3-118; (2) the 1995 declaration did not create a new community; (3) the common-law claims failed; and (4) defendants are entitled to appellate attorney fees under § 38-33.3-123(1)(c).
Issues
| Issue | Accetta’s Argument | Brooks Towers’ Argument | Held |
|---|---|---|---|
| Whether the 1995 declaration created a new common‑interest community subject to CCIOA | 1995 declaration “totally replace[d] and supersede[d]” 1979 declaration and thus created a new post‑1992 community governed by CCIOA | The community was created in 1979; the 1995 declaration amended/superseded terms but did not create a different parcel or a new community | Not a new community; 1995 amendment did not re‑create the community for CCIOA purposes |
| Whether the 1995 declaration elected the association into CCIOA by referencing it | Repeated references to CCIOA in the 1995 declaration amounted to an election into CCIOA | Election must follow the exclusive statutory procedures in § 38‑33.3‑118 (board/member vote and recorded statement of election) | § 38‑33.3‑118 is the exclusive mechanism; mere references/amendments do not effectuate election |
| Whether the 1995 declaration incorporated specific CCIOA provisions (e.g., § 38‑33.3‑205/207) | The declaration’s reference to compliance with certain requirements of § 205 incorporated § 207 allocation/formalities, so CCIOA provisions apply | § 38‑33.3‑120 does not let a pre‑existing community unilaterally import CCIOA wholesale; the declaration’s single reference does not incorporate § 207 | Declaration did not incorporate those CCIOA provisions; plaintiffs’ CCIOA claims fail |
| Whether common‑law claims survive and whether defendants are entitled to appellate fees | Common‑law claims (fiduciary duty, conversion, negligence) survive irrespective of CCIOA; fees not appropriate for plaintiffs | Allocation and assessment practices followed the recorded declaration; plaintiffs had constructive notice; defendants entitled to fees under § 38‑33.3‑123 | Common‑law claims fail as pleaded; defendants are prevailing parties and entitled to appellate attorney fees under § 38‑33.3‑123(1)(c) |
Key Cases Cited
- B.B. & C. Partnership v. Edelweiss Condominium Ass’n, 218 P.3d 310 (Colo. 2009) (discussed scope of COA/CCIOA timing but did not address § 38‑33.3‑118 election procedure)
- Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011) (statutory interpretation principle: give effect to entire statutory scheme and plain meaning)
- Cody Park Prop. Owners’ Ass’n v. Harder, 251 P.3d 1 (Colo. App. 2009) (awarding attorney fees under CCIOA fee-shifting provision where action sought to enforce CCIOA)
- Giguere v. SJS Fam. Enters., Ltd., 155 P.3d 462 (Colo. App. 2006) (discussing how pre‑Act communities may use amendment provisions consistent with UCIOA/CCIOA framework)
- Chateaux Condos. v. Daniels, 754 P.2d 425 (Colo. App. 1988) (recorded declaration places unit owners on constructive notice of assessment liabilities)