(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.
(II) If the declaration provides for an initial period of applicability to be
followed by automatic extension periods, the declaration may be amended at any
time in accordance with subparagraph (I) of this paragraph (a).
(III) This paragraph (a) shall not apply:
(A) To the extent that its application is limited by subsection (4) of this
section;
(B) To amendments executed by a declarant under section 38-33.3-205 (4)
and (5), 38-33.3-208 (3), 38-33.3-209 (6), 38-33.3-210, or 38-33.3-222;
(C) To amendments executed by an association under section 38-33.3-107,
38-33.3-206 (4), 38-33.3-208 (2), 38-33.3-212, 38-33.3-213, or 38-33.3-218 (11)
and (12);
(D) To amendments executed by the district court for any county that
includes all or any portion of a common interest community under subsection (7) of
this section; or
(E) To amendments that affect phased communities or declarant-controlled
communities.
(b) (I) If the declaration requires first mortgagees to approve or consent to
amendments, but does not set forth a procedure for registration or notification of
first mortgagees, the association may:
(A) Send a dated, written notice and a copy of any proposed amendment by
certified mail to each first mortgagee at its most recent address as shown on the
recorded deed of trust or recorded assignment thereof; and
(B) Cause the dated notice, together with information on how to obtain a
copy of the proposed amendment, to be printed in full at least twice, on separate
occasions at least one week apart, in a newspaper of general circulation in the
county in which the common interest community is located.
(II) A first mortgagee that does not deliver to the association a negative
response within sixty days after the date of the notice specified in subparagraph (I)
of this paragraph (b) shall be deemed to have approved the proposed amendment.
(III) The notification procedure set forth in this paragraph (b) is not
mandatory. If the consent of first mortgagees is obtained without resort to this
paragraph (b), and otherwise in accordance with the declaration, the notice to first
mortgagees shall be considered sufficient.
(2) No action to challenge the validity of an amendment adopted by the
association pursuant to this section may be brought more than one year after the
amendment is recorded.
(3) Any amendment to a declaration that adds real estate to a common
interest community must be executed by or with the express written authorization
of the owner or owners of the real estate to be added, as shown by the records of
the county clerk and recorder's office of the county where the real estate is
located. Every amendment to the declaration must be recorded in every county in
which any portion of the common interest community is located and is effective
only upon recordation. An amendment must be indexed in the grantee's index in the
name of the common interest community and the association and in the grantor's
index in the name of each person executing the amendment.
(4) (a) Except to the extent expressly permitted or required by other
provisions of this article, no amendment may create or increase special declarant
rights, increase the number of units, or change the boundaries of any unit or the
allocated interests of a unit in the absence of a vote or agreement of unit owners of
units to which at least sixty-seven percent of the votes in the association, including
sixty-seven percent of the votes allocated to units not owned by a declarant, are
allocated or any larger percentage the declaration specifies. The declaration may
specify a smaller percentage only if all of the units are restricted exclusively to
nonresidential use.
(b) The sixty-seven-percent maximum percentage stated in paragraph (a) of
subsection (1) of this section shall not apply to any common interest community in
which one unit owner, by virtue of the declaration, bylaws, or other governing
documents of the association, is allocated sixty-seven percent or more of the votes
in the association.
(4.5) Except to the extent expressly permitted or required by other
provisions of this article, no amendment may change the uses to which any unit is
restricted in the absence of a vote or agreement of unit owners of units to which at
least sixty-seven percent of the votes in the association are allocated or any larger
percentage the declaration specifies. The declaration may specify a smaller
percentage only if all of the units are restricted exclusively to nonresidential use.
(5) Amendments to the declaration required by this article to be recorded by
the association shall be prepared, executed, recorded, and certified on behalf of the
association by any officer of the association designated for that purpose or, in the
absence of designation, by the president of the association.
(6) All expenses associated with preparing and recording an amendment to
the declaration shall be the sole responsibility of:
(a) In the case of an amendment pursuant to sections 38-33.3-208 (2), 38-33.3-212, and 38-33.3-213, the unit owners desiring the amendment; and
(b) In the case of an amendment pursuant to section 38-33.3-208 (3), 38-33.3-209 (6), or 38-33.3-210, the declarant; and
(c) In all other cases, the association.
(7) (a) The association, acting through its executive board pursuant to
section 38-33.3-303 (1), may petition the district court for any county that includes
all or any portion of the common interest community for an order amending the
declaration of the common interest community if:
(I) The association has twice sent notice of the proposed amendment to all
unit owners that are entitled by the declaration to vote on the proposed amendment
or are required for approval of the proposed amendment by any means allowed
pursuant to the provisions regarding notice to members in sections 7-121-402 and
7-127-104, C.R.S., of the Colorado Revised Nonprofit Corporation Act, articles 121
to 137 of title 7, C.R.S.;
(II) The association has discussed the proposed amendment during at least
one meeting of the association; and
(III) Unit owners of units to which are allocated more than fifty percent of the
number of consents, approvals, or votes of the association that would be required
to adopt the proposed amendment pursuant to the declaration have voted in favor
of the proposed amendment.
(b) A petition filed pursuant to paragraph (a) of this subsection (7) shall
include:
(I) A summary of:
(A) The procedures and requirements for amending the declaration that are
set forth in the declaration;
(B) The proposed amendment to the declaration;
(C) The effect of and reason for the proposed amendment, including a
statement of the circumstances that make the amendment necessary or advisable;
(D) The results of any vote taken with respect to the proposed amendment;
and
(E) Any other matters that the association believes will be useful to the court
in deciding whether to grant the petition; and
(II) As exhibits, copies of:
(A) The declaration as originally recorded and any recorded amendments to
the declaration;
(B) The text of the proposed amendment;
(C) Copies of any notices sent pursuant to subparagraph (I) of paragraph (a)
of this subsection (7); and
(D) Any other documents that the association believes will be useful to the
court in deciding whether to grant the petition.
(c) Within three days of the filing of the petition, the district court shall set a
date for hearing the petition. Unless the court finds that an emergency requires an
immediate hearing, the hearing shall be held no earlier than forty-five days and no
later than sixty days after the date the association filed the petition.
(d) No later than ten days after the date for hearing a petition is set pursuant
to paragraph (c) of this subsection (7), the association shall:
(I) Send notice of the petition by any written means allowed pursuant to the
provisions regarding notice to members in sections 7-121-402 and 7-127-104, C.R.S.,
of the Colorado Revised Nonprofit Corporation Act, articles 121 to 137 of title 7,
C.R.S., to any unit owner, by first-class mail, postage prepaid or by hand delivery to
any declarant, and by first-class mail, postage prepaid, to any lender that holds a
security interest in one or more units and is entitled by the declaration or any
underwriting guidelines or requirements of that lender or of the federal national
mortgage association, the federal home loan mortgage corporation, the federal
housing administration, the veterans administration, or the government national
mortgage corporation to vote on the proposed amendment. The notice shall include:
(A) A copy of the petition which need not include the exhibits attached to the
original petition filed with the district court;
(B) The date the district court will hear the petition; and
(C) A statement that the court may grant the petition and order the proposed
amendment to the declaration unless any declarant entitled by the declaration to
vote on the proposed amendment, the federal housing administration, the veterans
administration, more than thirty-three percent of the unit owners entitled by the
declaration to vote on the proposed amendment, or more than thirty-three percent
of the lenders that hold a security interest in one or more units and are entitled by
the declaration to vote on the proposed amendment file written objections to the
proposed amendment with the court prior to the hearing;
(II) File with the district court:
(A) A list of the names and mailing addresses of declarants, unit owners, and
lenders that hold a security interest in one or more units and that are entitled by the
declaration to vote on the proposed amendment; and
(B) A copy of the notice required by subparagraph (I) of this paragraph (d).
(e) The district court shall grant the petition after hearing if it finds that:
(I) The association has complied with all requirements of this subsection (7);
(II) No more than thirty-three percent of the unit owners entitled by the
declaration to vote on the proposed amendment have filed written objections to the
proposed amendment with the court prior to the hearing;
(III) Neither the federal housing administration nor the veterans
administration is entitled to approve the proposed amendment, or if so entitled has
not filed written objections to the proposed amendment with the court prior to the
hearing;
(IV) Either the proposed amendment does not eliminate any rights or
privileges designated in the declaration as belonging to a declarant or no declarant
has filed written objections to the proposed amendment with the court prior to the
hearing;
(V) Either the proposed amendment does not eliminate any rights or
privileges designated in the declaration as belonging to any lenders that hold
security interests in one or more units and that are entitled by the declaration to
vote on the proposed amendment or no more than thirty-three percent of such
lenders have filed written objections to the proposed amendment with the court
prior to the hearing; and
(VI) The proposed amendment would neither terminate the declaration nor
change the allocated interests of the unit owners as specified in the declaration,
except as allowed pursuant to section 38-33.3-315.
(f) Upon granting a petition, the court shall enter an order approving the
proposed amendment and requiring the association to record the amendment in
each county that includes all or any portion of the common interest community.
Once recorded, the amendment shall have the same legal effect as if it were
adopted pursuant to any requirements set forth in the declaration.