Association Declaration
The declaration (often called the “covenants” or “CC&Rs”) is the recorded document which creates a homeowners or condominium association and binds every lot or unit in the community. It defines the units and common elements, allocates each owner’s share of votes and assessments, gives the association its powers, and sets the restrictions on use (e.g., rentals, building, pets and parking) which run with the land. Because it is recorded, the declaration binds every future owner as well as the current ones.
Amending or Restating a Declaration
Many Estes Valley associations operate under a declaration recorded in the 1970s or 1980s which has been amended piecemeal, if at all. Such documents often conflict with the Colorado Common Interest Ownership Act (“CCIOA”), which overrides the declaration where the two conflict, so that the board cannot rely on what its own governing documents say. The usual fix is an amended and restated declaration, which replaces the original and every prior amendment with a single current document.
Under CCIOA, a declaration can generally be amended by a vote of the owners holding more than half of the association’s votes, or by any larger percentage the declaration requires, up to a maximum of sixty-seven percent (67%). Some provisions (e.g., changes to unit boundaries or allocated interests) require more. Where an association cannot reach the required vote despite a good-faith effort, CCIOA provides a process to ask the court to approve the amendment. Once adopted, the amendment is recorded with the Larimer County Clerk and Recorder.
What Elkhorn Law Does
We review the existing declaration, plat and amendments against current law, and give the board a written memorandum that identifies what must change, what should change and what can stay. We then draft the amended and restated declaration, prepare the ballot and owner communications, and record the final document. Provisions that the board may want to adjust over time often belong in Association Policies instead of the declaration, since the board can revise a policy without a vote of the owners. The association’s internal procedures belong in its Association Bylaws.
We also draft declarations for new communities, including small developments that may qualify for CCIOA’s lighter requirements for limited-expense communities.