The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 1, 2021
2021COA87
No. 19CA2076, Accetta v. Brooks Towers Residences — Common Interest Communities — Colorado Common Interest Ownership Act — Procedure to Elect Treatment
In this case, a division of the court of appeals considers
whether section 38-33.3-118, C.R.S. 2020, provides the exclusive
means for a common interest community association that existed
prior to the effective date of the Colorado Common Interest
Ownership Act (CCIOA) to elect to be governed by the entirety of
CCIOA. Concluding that it does, the division rejects the argument
that such an election can be made simply by recording a new
declaration that might be interpreted to adopt the provisions of
CCIOA.
The division therefore affirms the trial court’s grant of
summary judgment in favor of defendants, an association and its individual board members, on a declaratory judgment claim
brought by two residents under CCIOA. The division also affirms
the trial court’s grant of summary judgment in favor of defendants
on the residents’ common law claims. Finally, the division
concludes that defendants are entitled to recover their appellate
attorney fees under section 38-33.3-123(1)(c), C.R.S. 2020, and
remands the case to the trial court to determine the amount of such
fees and award them to defendants. COLORADO COURT OF APPEALS 2021COA87
Court of Appeals No. 19CA2076 City and County of Denver District Court No. 17CV34787 Honorable Morris B. Hoffman, Judge
Anthony T. Accetta and Nancy Accetta,
Plaintiffs-Appellants,
v.
Brooks Towers Residences Condominium Association, Inc., a Colorado nonprofit corporation; Mark Trenka, in his capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.; Marla Grant, in her capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.; Bill Clarke, in his capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.; Clay Courter, in his capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.; Robb Green, in his capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.; and Joan Foster, in her capacity as a member of the Board of Directors of the Brooks Towers Residences Condominium Association, Inc.,
Defendants-Appellees.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE GOMEZ Furman and Tow, JJ., concur
Announced July 1, 2021
Foley & Mansfield, PLLP, Dustin J. Priebe, Englewood, Colorado; Podoll & Podoll, P.C., Robert C. Podoll, Greenwood Village, Colorado for Plaintiffs- Appellants Nemirow Perez P.C., Ronald H. Nemirow, Miles Buckingham, Lakewood, Colorado, for Defendants-Appellees ¶1 In this case, we are asked to resolve an issue of first
impression under the Colorado Common Interest Ownership Act
(CCIOA), sections 38-33.3-101 to -401, C.R.S. 2020, which governs
the creation and operation of common interest communities in the
state.
¶2 Specifically, we consider whether section 38-33.3-118, C.R.S.
2020, provides the exclusive means for a common interest
community association that existed prior to the effective date of
CCIOA to elect to be governed by the entirety of CCIOA. We
conclude that it does and, in doing so, reject the argument that
such an election can be made simply by recording a new
declaration that might be interpreted to adopt the provisions of
¶3 Therefore, we affirm the trial court’s grant of summary
judgment in favor of defendants, Brooks Towers Residences
Condominium Association, Inc. (the Association) and its individual
board members, on a declaratory judgment claim brought by two
residents, Anthony T. Accetta and Nancy Accetta, under CCIOA.
We also affirm the trial court’s grant of summary judgment in favor
of defendants on the Accettas’ common law claims. Finally, we
1 conclude that defendants are entitled to recover their attorney fees
for this appeal under section 38-33.3-123(1)(c), C.R.S. 2020, and
we remand the case to the trial court to determine the amount of
such fees and award them to defendants.
I. Background
¶4 Through their claims in this case, the Accettas challenge the
allocation of common expenses among units in Brooks Towers, a
high-rise condominium building in downtown Denver.
¶5 Magna Associates (Magna) acquired the building in the 1970s.
At that time, it was a residential apartment building with a handful
of commercial spaces.
¶6 In 1979, Magna recorded a declaration and map submitting
the building to condominium ownership under the Condominium
Ownership Act (COA), section 38-33-101 to -113, C.R.S. 2020. The
1979 declaration named the community Brooks Towers
Condominiums and divided the building into 518 units (514
residential and 4 commercial units). Magna didn’t sell the units at
that time but continued to rent them to tenants. Nor, it seems, did
Magna create “The Brooks Towers Condominiums Association, Inc.”
referenced in the 1979 declaration.
2 ¶7 In the early 1990s, Magna had to sell its assets and distribute
its funds, as its formation documents required it to terminate on a
certain date. To facilitate these tasks, Magna transitioned to the
Magna Associates Liquidating Trust (the Trust), which remodeled
the common spaces, converted some spaces into additional units,
and sold all the units to third parties.
¶8 In 1995, before selling the units, the Trust, acting as the
declarant, executed and recorded an “Amended and Restated
Declaration” and an amended map. The 1995 declaration states
that it “shall totally replace and supersede the [1979] declaration.”
Through the 1995 declaration, the Trust changed the community’s
name to Brooks Tower Residences, increased the number of units to
854 (526 residential, 33 commercial, and 295 parking units), and
designated the Association (which had been created in 1994 under
the new name, Brooks Tower Residences Condominium Association,
Inc.) to manage the community.1
1Notwithstanding that the Association’s name is Brooks Tower Residences Condominium Association, Inc., it was sued and has participated in this case under the name Brooks Towers Residences Condominium Association, Inc. (with an “s” at the end of Tower).
3 ¶9 The 1995 declaration makes several references to CCIOA,
which had become effective on July 1, 1992. See Ch. 283, sec. 2,
1991 Colo. Sess. Laws 1757. For example, it
provides that the “Declarant does hereby submit the Project
to condominium ownership pursuant to [CCIOA]”;
states that “[t]he provisions of this Declaration shall be in
addition and supplemental to [CCIOA] and to all other
provisions of law”; and
includes a section providing information about the property
“in compliance with certain of the requirements set forth in
Section 205 of [CCIOA].”
¶ 10 An attachment to the 1995 declaration specifies the
allocations of undivided interests for each unit. The declaration
explains that those percentages are based on the units’ relative
values, as determined by the Trust as of the date of the declaration.
The declaration also obligates unit owners to pay assessments,
imposed by the Association against each unit in accordance with
the unit’s ownership percentage, to meet the common expenses.
¶ 11 The Accettas purchased Unit 3D in 2005. Under the 1995
declaration, Unit 3D’s percentage of ownership in the common
4 elements was less than 0.3 percent — less than some units but
significantly higher than many others. As a result, the Accettas pay
higher monthly dues and are assessed higher amounts for large
projects than many other unit owners.
¶ 12 The special warranty deed that conveyed Unit 3D to the
Accettas states that the unit is subject to the 1995 declaration. The
Accettas maintain, however, that they didn’t read the declaration
before purchasing the unit, weren’t provided a copy of the list of
percentage interests or any other documentation showing the
allocations for other units, and didn’t learn of the differentials in
unit allocations until several years later.
¶ 13 In 2017, after learning of those differentials, the Accettas filed
this case. They sought a declaration that the 1995 declaration’s
allocation provisions are invalid under three provisions of CCIOA:
(1) section 38-33.3-207(2), C.R.S. 2020, which requires a
declaration to state the formulas used to establish allocations of
interests; (2) section 38-33.3-112(1), C.R.S. 2020, which permits a
court to refuse to enforce an unconscionable clause in a contract
relating to a common interest community; and (3) section
38-33.3-113, C.R.S. 2020, which imposes an obligation of good
5 faith in the performance of every contract or duty governed by
CCIOA. They also brought common law claims for breach of
fiduciary duty, conversion, unjust enrichment, and negligence.
¶ 14 Earlier in the case, the trial court ordered that all the other
unit owners were indispensable parties who had to be joined in the
case. The supreme court reviewed that order under C.A.R. 21 and
concluded that joinder was not necessary. Accetta v. Brooks Towers
Residences Condo. Ass’n, 2019 CO 11, ¶ 3.2
¶ 15 Later, on cross-motions by the parties, the trial court issued
three orders resolving the Accettas’ claims.
¶ 16 In the first order, the court issued a legal determination under
C.R.C.P. 56(h) that Brooks Towers is not governed by the entirety of
CCIOA. The court reasoned that the community was formed in
1979 under COA, there was never any election for treatment as a
post-CCIOA community through the procedures outlined in section
38-33.3-118, and such an election couldn’t be effectuated by other
means, including by adopting and recording a new declaration.
2 At the time of the supreme court’s review of the joinder issue, Mr. Accetta was the only plaintiff in the case. Ms. Accetta was later joined as an additional plaintiff.
6 ¶ 17 In the second order, the court granted in part the individual
defendants’ summary judgment motion, concluding that the
Accettas could pursue their CCIOA declaratory judgment claim but
not their common law claims against the individual defendants. As
to the common law claims, the court reasoned that, under various
provisions of law and the Association’s governing documents, “none
of the individually-named Defendants can be held liable in tort for
any of the damage claims asserted against them.”
¶ 18 In the third order, the court granted defendants’ motion for
summary judgment and denied the Accettas’ cross-motion for
summary judgment. The court concluded that the Accettas’ CCIOA
declaratory judgment claim failed as a matter of law because the
community isn’t subject to the entirety of CCIOA or to the specific
CCIOA provisions at issue, and, even if those provisions applied, the
1995 declaration didn’t violate them. The court also concluded that
the Accettas’ common law claims failed as a matter of law because
defendants had no duty to adjust the allocations set by the 1995
declaration and the Accettas were on record notice of those
allocations when they purchased their unit.
7 ¶ 19 The Accettas challenge the first and third orders in this appeal
but do not challenge the second order.
II. Analysis
¶ 20 The Accettas contend the trial court erred in three ways: (1) by
concluding that Brooks Towers isn’t governed by CCIOA; (2) by
holding that the 1995 declaration doesn’t violate certain provisions
of CCIOA; and (3) by entering summary judgment in defendants’
favor on the Accettas’ common law claims.
¶ 21 We disagree with the Accettas on the first issue. Because we
conclude that Brooks Towers isn’t subject to the CCIOA provisions
the Accettas claim the 1995 declaration violates, we don’t address
the second issue. We also disagree with the Accettas on the third
issue. Finally, we consider the parties’ competing requests for
appellate attorney fees.
A. Legal Principles and Standard of Review
¶ 22 The trial court issued its two disputed orders under C.R.C.P.
56(h) and (c), respectively.
¶ 23 C.R.C.P. 56(h) allows a court to address issues of law that are
not dispositive of a claim but nonetheless will significantly impact
the way the case proceeds. Coffman v. Williamson, 2015 CO 35,
8 ¶ 11. An order is appropriate under the rule “[i]f there is no
genuine issue of any material fact necessary for the determination
of the question of law.” Id. at ¶ 12 (quoting C.R.C.P. 56(h)).
¶ 24 Summary judgment under C.R.C.P. 56(c) is appropriate when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Ryan Ranch Cmty. Ass’n v.
Kelley, 2016 CO 65, ¶ 23.
¶ 25 We review decisions under both provisions of Rule 56 de novo.
Id.; Coffman, ¶ 12.
¶ 26 We likewise review de novo a trial court’s interpretation of
recorded instruments. Ryan Ranch, ¶ 24. We give the words and
phrases their common meanings and, where an instrument’s
meaning is clear, we enforce it as written. Pulte Home Corp. v.
Countryside Cmty. Ass’n, 2016 CO 64, ¶ 23.
¶ 27 The meaning and effect of statutory provisions are also
questions of law that we review de novo. Ryan Ranch, ¶ 25. When
interpreting a statute, our primary goal is to ascertain and give
effect to the General Assembly’s intent. Lewis v. Taylor, 2016 CO
48, ¶ 20. “In interpreting a statute, we look to ‘the entire statutory
scheme to give consistent, harmonious, and sensible effect to all
9 parts’ and apply ‘words and phrases according to their plain and
ordinary meaning.’’’ Pulte Home Corp., ¶ 24 (quoting Denver Post
Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)). “Where the
statute’s language is clear, we apply it as written.” Id.
B. CCIOA Declaratory Judgment Claim
¶ 28 We first address the issue at the heart of this dispute: whether
Brooks Towers is governed by the provisions of CCIOA the Accettas
claim the 1995 declaration violates. We conclude that it is not. In
doing so, we reject the Accettas’ three arguments for application of
CCIOA: (1) that the 1995 declaration created an entirely new
common interest community; (2) that the 1995 declaration elected
treatment under CCIOA; and (3) that the 1995 declaration
incorporated some of the relevant provisions of CCIOA.3
1. Creation of a New Community Under the 1995 Declaration
¶ 29 We first reject the Accettas’ argument that Brooks Towers isn’t
a pre-existing community that falls outside the scope of much of
3 The Accettas also highlight the fact that in the early stages of this case, defendants argued that CCIOA applied and barred the Accettas’ claims. They don’t make any legal argument based on that fact, however, so we don’t consider it.
10 CCIOA but, instead, became a new community subject to CCIOA
when it adopted a new declaration in 1995.
¶ 30 CCIOA automatically applies in its entirety to common interest
communities “created” in the state after CCIOA’s effective date of
July 1, 1992. § 38-33.3-115, C.R.S. 2020. It generally does not
apply to communities created before its effective date.
§ 38-33.3-117(3), C.R.S. 2020; see also DA Mountain Rentals, LLC v.
Lodge at Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 28.
There are two important exceptions, however. First, under section
38-33.3-117, pre-existing communities are automatically subject to
certain provisions in CCIOA. DA Mountain Rentals, ¶ 28. Second,
under section 38-33.3-118, associations for pre-existing
communities may elect to be governed by CCIOA in its entirety.
DA Mountain Rentals, ¶ 28.
¶ 31 A common interest community is “created” for purposes of
CCIOA by recording a declaration and a plat or map and conveying
the real estate subject to the declaration to the association.
§ 38-33.3-201(1), C.R.S. 2020; see also Pulte Home Corp., ¶¶ 41-44.
By contrast, COA doesn’t set forth any specific requirements for the
11 creation of a common interest community under that statutory
scheme.
¶ 32 Nonetheless, we agree with the trial court that Brooks Towers
was created as a common interest community in 1979. The
question, then, is whether the amendment of the bylaws in 1995
effectively created a “new” common interest community in place of
the earlier one. We conclude that it did not.
¶ 33 In doing so, we reject the Accettas’ argument that the 1995
declaration, by “totally replac[ing] and supersed[ing]” the 1979
declaration, created an entirely new common interest community.
The 1995 declaration may have supplanted the terms of the 1979
declaration, but it didn’t nullify the 1979 declaration as if the
earlier declaration had never existed. Nor did it create a new
common interest community where there wasn’t one before.
¶ 34 Critically, both declarations describe the same real estate.
Under CCIOA, a “common interest community” is “real estate
described in a declaration with respect to which a person, by virtue
of such person’s ownership of a unit, is obligated to pay for real
estate taxes, insurance premiums, maintenance, or improvement of
other real estate described in a declaration.” § 38-33.3-103(8),
12 C.R.S. 2020. And “real estate” is “any leasehold or other estate or
interest in, over, or under land, including structures, fixtures, and
other improvements and interests that, by custom, usage, or law,
pass with a conveyance of land though not described in the contract
of sale or instrument of conveyance.” § 38-33.3-103(25).
¶ 35 Here, the real estate — the property interests in the land upon
which the condominium building sits and in the structures,
fixtures, and other improvements on that land — didn’t
fundamentally change between the 1979 and the 1995 declarations.
Both declarations create a community of common ownership. Both
provide the same legal description of the land. Both pertain to the
same high-rise condominium building. And, while the Trust
renovated portions of the building and created additional units
before recording the 1995 declaration, the structure was largely the
same, as were many of the units within that structure.
¶ 36 It cannot be that any time a common interest community
makes improvements to a building, modifies or adds units or
common areas, amends its declaration, or changes its name, it
automatically becomes a new community under CCIOA. Such a
rule would bring uncertainty into application of CCIOA, contrary to
13 its legislative purposes. See § 38-33.3-102(1)(a), C.R.S. 2020 (“[I]t is
in the best interests of the state and its citizens to establish a clear,
comprehensive, and uniform framework for the creation and
operation of common interest communities.”). It also would disrupt
CCIOA’s specific procedures for election into governance by its
provisions, as discussed in the next section, and for termination of
existing communities. See § 38-33.3-218, C.R.S. 2020.
Accordingly, we decline to adopt such a rule.
2. Election into the Provisions of CCIOA
¶ 37 Next, we reject the Accettas’ argument that, through its
repeated references to CCIOA, the 1995 declaration effectively
elected into treatment under CCIOA.
¶ 38 Section 38-33.3-118 — which, pursuant to section
38-33.3-117(1)(e), applies to pre-existing common interest
communities as to events and circumstances occurring on or after
July 1, 1992 — provides two methods an association for a pre-
existing community may use to elect to be governed by CCIOA in its
entirety. Under the first method,
[i]f there are members or stockholders entitled to vote thereon, the board of directors may adopt a resolution recommending that such
14 association accept this article and directing that the question of acceptance be submitted to a vote at a meeting of the members or stockholders entitled to vote thereon, which may be either an annual or special meeting. The question shall also be submitted whenever one-twentieth, or, in the case of an association with over one thousand members, one-fortieth, of the members or stockholders entitled to vote thereon so request. Written notice stating that the purpose, or one of the purposes, of the meeting is to consider electing to be treated as a common interest community organized after June 30, 1992, and thereby accepting the provisions of this article, together with a copy of this article, shall be given to each person entitled to vote at the meeting within the time and in the manner provided in the articles of incorporation, declaration, bylaws, or other governing documents for such association for the giving of notice of meetings to members. Such election to accept the provisions of this article shall require for adoption at least sixty- seven percent of the votes that the persons present at such meeting in person or by proxy are entitled to cast.
§ 38-33.3-118(1)(a). Alternatively,
[i]f there are no persons entitled to vote thereon, the election to be treated as a common interest community under this article may be made at a meeting of the board of directors pursuant to a majority vote of the directors in office.
§ 38-33.3-118(1)(b).
15 ¶ 39 Under either method, certain officers of the association must
execute and record a statement of election setting forth the name of
the common interest community and association, the fact that the
association has elected to accept the provisions of CCIOA, and
information concerning the association’s compliance with one of the
two methods for electing into CCIOA. § 38-33.3-118(2)-(3). Only
when that statement of election is recorded does the election
become effective. § 38-33.3-118(4).
¶ 40 The meaning of these provisions is clear. The General
Assembly has established specific procedures that associations
must follow if they want to elect treatment under CCIOA — and only
through those procedures can such an election be effectuated.
¶ 41 Notably, although the General Assembly modeled much of
CCIOA on the Uniform Common Interest Ownership Act (Unif. L.
Comm’n 2014) (UCIOA), see Pulte Home Corp., ¶ 43 n.5, section
38-33.3-118 is unique to Colorado. It was modeled after statutory
sections setting forth the procedures for pre-existing corporate
entities to elect into the provisions of the Colorado Revised
Nonprofit Corporation Act. See Staff Summary of Hearing on H.B.
91-1292 before the H. Comm. on Judiciary, 58th Gen. Assemb., 1st
16 Reg. Sess. (Feb. 12, 1991), attach. A (Memorandum from James L.
Winokur on Proposed Colorado Common Interest Ownership Act:
Background & Summary of Basic Provisions 39-40 (Feb. 1990)); see
also §§ 7-137-201 to -204, C.R.S. 2020.
¶ 42 This suggests that the General Assembly wanted to tailor
CCIOA to give associations for pre-existing common interest
communities an option to elect treatment under CCIOA. But the
specificity of Colorado’s unique provisions suggests that the General
Assembly also wanted to be deliberate about exactly how such an
election could be made and what kind of notice would need to be
recorded to advise others of the election.
¶ 43 We therefore conclude that section 38-33.3-118 provides the
exclusive mechanism by which an association for a pre-existing
common interest community can elect to be governed by the
entirety of CCIOA. This interpretation comports with the plain
language of this provision. It also comports with the general
language in CCIOA stating that, “[e]xcept as expressly provided in
this article, provisions of this article may not be varied by
agreement, and rights conferred by this article may not be waived.”
§ 38-33.3-104, C.R.S. 2020.
17 ¶ 44 Our decision is in line with recent supreme court cases strictly
enforcing other procedural requirements set forth in CCIOA. For
instance, in Ryan Ranch, ¶¶ 33, 51, the court held, based in part on
section 38-33.3-104, that an association didn’t annex property into
a common interest community when it didn’t comply with the
procedures specified in CCIOA for doing so. And in Perfect Place,
LLC v. Semler, 2018 CO 74, ¶ 48, the court held that the owner of a
garage unit didn’t subdivide that unit when he didn’t comply with
the procedures specified in CCIOA for doing so. While the supreme
court hasn’t expressly held that CCIOA provisions always require
strict compliance, its decisions certainly suggest that, at the least,
substantial compliance with a CCIOA-established procedure is
necessary. See, e.g., id. And adopting a declaration that vaguely
refers to CCIOA but doesn’t expressly elect treatment under CCIOA,
without following the specified procedures for approving and filing a
statement of election, doesn’t comply with the statutory process “in
any meaningful sense.” Id.
¶ 45 Our decision also aligns with CCIOA’s statutory purpose “to
establish a clear, comprehensive, and uniform framework for the
creation and operation of common interest communities.”
18 § 38-33.3-102(1)(a). This purpose is best served by applying the
statute as written — that is, to require that associations for pre-
existing communities follow the specified procedure if they wish to
be governed by the entirety of CCIOA. That way, members and
stockholders can be ensured notice and an opportunity to vote on
the issue; potential buyers and other interested parties can review
the recordings relating to the property to confirm which statutory
regime applies; and associations can be assured that they won’t
inadvertently subject themselves to CCIOA any time they amend
their declarations, without carefully weighing the consequences of
such a change. See generally William C. Jensen & Cynthia L.
McNeill, Colorado Common Interest Ownership Act — How It Is
Doing, 25 Colo. Law. 17, 20 (Nov. 1996) (“[T]he decision to elect into
CCIOA or to remain subject to COA requires close examination of
the rights and liabilities contained in the declaration, focusing on
how an election into CCIOA will either enhance or destroy the rights
contained therein.”).
¶ 46 We share the trial court’s concerns that the protections and
predictability provided by section 38-33.3-118 would “evaporate” if
courts “were allowed to peruse amended declarations for evidence
19 that the board of directors of a pre-existing condominium intended
to become subject to the CCIOA even though they never proposed or
adopted a formal resolution to do so.”
¶ 47 We also note that allowing associations for pre-existing
communities to elect into CCIOA simply by filing an amended
declaration could enable some associations to avoid the onerous
requirements set forth in CCIOA for making such an election.
Where members or stockholders are entitled to vote, for a proposed
election into CCIOA to pass, section 38-33.3-118(1)(a) requires an
affirmative vote by at least sixty-seven percent of those persons who
cast a vote. Yet a declaration might require far fewer votes to
approve declaration amendments. Indeed, COA doesn’t dictate the
requirements for amendment of a declaration. See §§ 38-33-105.5,
38-33-106, C.R.S. 2020. And a provision of CCIOA, which applies
to pre-existing communities for declaration amendments made on
or after January 1, 2006, allows for amendments with as little as a
simple majority of the votes in the association — or less if all units
are restricted to nonresidential use. § 38-33.3-217(1)(a)(I), C.R.S.
2020; see also § 38-33.3-117(1.5)(d).
20 ¶ 48 We reject the Accettas’ argument that dicta in B.B. & C.
Partnership v. Edelweiss Condominium Ass’n, 218 P.3d 310 (Colo.
2009), suggests the amendment of a declaration can automatically
trigger application of the entirety of CCIOA. The supreme court’s
opinion in that case merely notes that COA controlled the issues in
the case “because the Declaration creating [the community] was
recorded in 1970 and the relevant events transpired before the
2003 Amended Declaration was recorded.” Id. at 315. The opinion
doesn’t cite section 38-33.3-118 and doesn’t consider the process
the association would need to follow to elect treatment under
CCIOA. See id. Thus, it has no bearing on this issue.
¶ 49 Finally, we reject the Accettas’ argument that the statutory
requirements don’t apply in this case because the association
contemplated in the 1979 declaration was never formed and, in the
absence of any voting members or board of directors, there would’ve
been no way to accomplish the procedures in section 38-33.3-118.
Had Magna wished for the common interest community to become
subject to the entirety of CCIOA, it could’ve formed the association
and board of directors and then proceeded to follow the section
38-33.3-118 procedures. It didn’t do so.
21 ¶ 50 For all these reasons, we conclude that, irrespective of the
1995 declaration’s repeated references to CCIOA, the recording of
that declaration did not elect treatment under CCIOA as
contemplated by section 38-33.3-118.
3. Opting into Portions of CCIOA
¶ 51 We also reject the Accettas’ argument that the 1995
declaration incorporated one of the CCIOA requirements they claim
has been violated. Specifically, they argue that the declaration
incorporated the requirements of section 38-33.3-205, C.R.S. 2020,
which, in turn, incorporates the requirements of section
38-33.3-207. We disagree for two reasons.
¶ 52 First, we disagree with the Accettas’ premise that section
38-33.3-120, C.R.S. 2020, provides a means for associations for
pre-existing communities to adopt all or large parts of CCIOA
without undergoing the procedures outlined in section 38-33.3-118.
¶ 53 Section 38-33.3-120(1) provides,
[i]n the case of amendments to the declaration, bylaws, or plats and maps of any common interest community created within this state before July 1, 1992, which has not elected treatment under this article pursuant to section 38-33.3-118:
22 (a) If the substantive result accomplished by the amendment was permitted by law in effect prior to July 1, 1992, the amendment may be made either in accordance with that law, in which case that law applies to that amendment, or it may be made under this article; and
(b) If the substantive result accomplished by the amendment is permitted by this article, and was not permitted by law in effect prior to July 1, 1992, the amendment may be made under this article.
See also § 38-33.3-117(1)(f) (applying section 38-33.3-120 to
pre-existing communities for events and circumstances occurring
on or after July 1, 1992).
¶ 54 This provision, like the UCIOA provision on which it is based,
“does not permit a pre-existing common interest community to elect
to come entirely within the provisions of the Act, disregarding old
law.” UCIOA § 1-206 cmt. 6; see also Arrabelle at Vail Square
Residential Condo. Ass’n v. Arrabelle at Vail Square LLC, 2016 COA
123, ¶ 15 (“CCIOA is patterned after the [UCIOA], and ‘we accept
the intent of the drafters of a uniform act as the General Assembly’s
intent when it adopts a uniform act.’” (quoting Yacht Club II
Homeowners Ass’n v. A.C. Excavating, 94 P.3d 1177, 1180 (Colo.
23 App. 2003))). Nor does it permit an association for a pre-existing
community to elect to come within some portions of CCIOA.
¶ 55 Instead, this provision enables associations for pre-existing
communities to amend their declarations to add provisions that
would’ve been prohibited by pre-existing law but are permitted
under CCIOA. See, e.g., DA Mountain Rentals, ¶¶ 29-31; Giguere v.
SJS Fam. Enters., Ltd., 155 P.3d 462, 467-69 (Colo. App. 2006);
UCIOA § 1-204 cmt. 2 (“[U]nder Section 1-206, owners of ‘old’
common interest communities may amend any provisions of their
declaration or bylaws, even if the amendment would not be
permitted by ‘old’ law, so long as (a) the amendment is adopted in
accordance with the procedure required by ‘old’ law and the existing
declaration and bylaws, and (b) the substance of the amendment
does not violate this Act.”); UCIOA § 1-206 cmt. 1 (“This section . . .
provides a straightforward mechanism by which the documents of
pre-Act common interest communities may be amended to take
advantage of desirable provisions of the Act.”).
¶ 56 Second, even if an association could adopt portions of CCIOA
through a declaration, the 1995 declaration doesn’t evince any
intent to incorporate the requirements of section 38-33.3-205 or,
24 through it, section 38-33.3-207. As the trial court noted, the
declaration refers to section 38-33.3-205 only one time; that one
“casual reference” (which provides that, “[i]n compliance with
certain of the requirements set forth in Section 205 of [CCIOA],
Declarant hereby states as follows,” before addressing various
topics section 38-33.3-205 requires to be in all declarations) doesn’t
signify an intent to be bound by section 38-33.3-205 where CCIOA
didn’t otherwise apply; and the declaration makes no reference
whatsoever to section 38-33.3-207, the section the declaration
supposedly violates.
4. Compliance With CCIOA
¶ 57 We have concluded that Brooks Towers isn’t governed by
CCIOA, either generally or as to the specific provisions at issue.
And the provisions of CCIOA that the Accettas claim to have been
violated — sections 38-33.3-112, 38-33.3-113, and 38-33.3-207 —
aren’t ones that section 38-33.3-117 automatically applies to
pre-existing communities like Brooks Towers. Therefore, the 1995
declaration isn’t subject to these provisions, and we don’t consider
Brooks Towers’ compliance with them.
25 C. Common Law Claims
¶ 58 We next address the Accettas’ argument that the trial court
erred by entering summary judgment in defendants’ favor on their
remaining claims for breach of fiduciary duty, conversion, unjust
enrichment, and negligence. They assert that these claims survive
even if CCIOA doesn’t apply. We disagree.
¶ 59 The Accettas concede that if their CCIOA declaratory judgment
claim fails, their unjust enrichment claim fails as well. We
therefore address only their other three common law claims. We
also limit our consideration to the claims asserted against the
Association, because the Accettas don’t challenge the dismissal of
the common law claims against the individual defendants.
¶ 60 As alleged in the complaint, the breach of fiduciary duty,
conversion, and negligence claims are all based on imposition of
excessive fees against the Accettas’ unit and failure to disclose the
relative amount of the fees as compared to other units.
¶ 61 Yet the Accettas haven’t established the excessiveness of the
fees under any applicable provision of CCIOA, they haven’t argued
excessiveness under COA, and they haven’t articulated any other
legal basis for concluding that the fees were excessive or that the
26 Association had an obligation to ignore the allocations in the 1995
declaration in assessing fees. Indeed, the declaration obligates the
Association to assess fees in accordance with the allocations
adopted as part of that declaration.
¶ 62 Additionally, the Accettas’ claims regarding disclosure of the
fee differentials among units fail because the recorded declaration
sets out the allocations for each unit. Thus, the Accettas were on
constructive notice of the fee allocations for all units as far back as
1995. See Chateaux Condos. v. Daniels, 754 P.2d 425, 426-27
(Colo. App. 1988) (a condominium association’s recorded
declaration put a unit owner on constructive notice that he was
liable for unpaid common expenses assessed against his unit).
¶ 63 The Accettas argue that improper resolutions and declaration
amendments (unrelated to the fee allocations) also support their
claims. But, while the complaint briefly alludes to those actions, it
doesn’t allege them as a basis for any of the common law claims.
Therefore, we don’t consider them. See Wibby v. Boulder Cnty. Bd.
of Cnty. Comm’rs, 2016 COA 104, ¶ 20 (declining to consider an
argument that wasn’t alleged in the complaint).
27 D. Attorney Fees
¶ 64 Finally, we consider the parties’ competing requests for
attorney fees for this appeal. We deny the Accettas’ request
because they are not the prevailing parties. However, we grant
defendants’ request.
¶ 65 Section 38-33.3-123(1)(c) — which, under section
38-33.3-117(1)(g), applies to pre-existing common interest
communities for events and circumstances occurring on or after
July 1, 1992 — provides that “[i]n any civil action to enforce or
defend the provisions of this article or of the declaration, bylaws,
articles, or rules and regulations, the court shall award reasonable
attorney fees, costs, and costs of collection to the prevailing party.”
¶ 66 We conclude that section 38-33.3-123(1)(c) requires an award
of appellate attorney fees to defendants as the prevailing parties in
this civil action to enforce the provisions of CCIOA. All of the
Accettas’ claims, including the declaratory judgment claim and the
common law claims, were premised on violations of CCIOA. And
while we ultimately rejected those claims based on our conclusion
that Brooks Towers isn’t governed by CCIOA, section
38-33.3-123(1)(c) still applies because the Accettas brought the
28 action to enforce CCIOA’s provisions. Accordingly, an award of fees
under that section is required. See Cody Park Prop. Owners’ Ass’n
v. Harder, 251 P.3d 1, 8 (Colo. App. 2009); Giguere, 155 P.3d at
472.
¶ 67 Pursuant to C.A.R. 39.1, we exercise our discretion to remand
the case to the trial court to determine the amount of reasonable
appellate fees to be awarded to defendants.
III. Conclusion
¶ 68 The judgment is affirmed, and the case is remanded to the
trial court to determine the amount of defendants’ reasonable
appellate attorney fees and award such fees to defendants.
JUDGE FURMAN and JUDGE TOW concur.