CO Code § 38-33.3-103 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 33.3 - Colorado Common Interest Ownership Act|Part 1 - General Provisions|§ 38-33.3-103. Definitions

 As used in the declaration and bylaws of an association, unless specifically provided otherwise or unless the context otherwise requires, and in this article:    “Affiliate of a declarant” means any person who controls, is controlled by, or is under common control with a declarant. A person controls a declarant if the person: Is a general partner, officer, director, or employee of the declarant; directly or indirectly, or acting in concert with one or more other persons or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than twenty percent of the voting interests of the declarant; controls in any manner the election of a majority of the directors of the declarant; or has contributed more than twenty percent of the capital of the declarant. A person is controlled by a declarant if the declarant: Is a general partner, officer, director, or employee of the person; directly or indirectly, or acting in concert with one or more other persons or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than twenty percent of the voting interests of the person; controls in any manner the election of a majority of the directors of the person; or has contributed more than twenty percent of the capital of the person. Control does not exist if the powers described in this subsection (1) are held solely as security for an obligation and are not exercised.    “Allocated interests” means the following interests allocated to each unit:   In a condominium, the undivided interest in the common elements, the common expense liability, and votes in the association;    In a cooperative, the common expense liability and the ownership interest and votes in the association; and    In a planned community, the common expense liability and votes in the association. (2.5) “Approved for development” means that all or some portion of a particular parcel of real property is zoned or otherwise approved for construction of residential and other improvements and authorized for specified densities by the local land use authority having jurisdiction over such real property and includes any conceptual or final planned unit development approval.       “Association” or “unit owners' association” means a unit owners' association organized under section 38-33.3-301.    “Bylaws” means any instruments, however denominated, which are adopted by the association for the regulation and management of the association, including any amendments to those instruments.    “Common elements” means:   In a condominium or cooperative, all portions of the condominium or cooperative other than the units; and    In a planned community, any real estate within a planned community owned or leased by the association, other than a unit.       “Common expense liability” means the liability for common expenses allocated to each unit pursuant to section 38-33.3-207.    “Common expenses” means expenditures made or liabilities incurred by or on behalf of the association, together with any allocations to reserves.    “Common interest community” means 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. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.    “Condominium” means a common interest community in which portions of the real estate are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of the separate ownership portions. A common interest community is not a condominium unless the undivided interests in the common elements are vested in the unit owners.    “Cooperative” means a common interest community in which the real property is owned by an association, each member of which is entitled by virtue of such member's ownership interest in the association to exclusive possession of a unit.    “Dealer” means a person in the business of selling units for such person's own account.    “Declarant” means any person or group of persons acting in concert who:   As part of a common promotional plan, offers to dispose of to a purchaser such declarant's interest in a unit not previously disposed of to a purchaser; or    Reserves or succeeds to any special declarant right.       “Declaration” means any recorded instruments however denominated, that create a common interest community, including any amendments to those instruments and also including, but not limited to, plats and maps.    “Development rights” means any right or combination of rights reserved by a declarant in the declaration to:   Add real estate to a common interest community;    Create units, common elements, or limited common elements within a common interest community;    Subdivide units or convert units into common elements; or    Withdraw real estate from a common interest community.       “Dispose” or “disposition” means a voluntary transfer of any legal or equitable interest in a unit, but the term does not include the transfer or release of a security interest.    “Executive board” means the body, regardless of name, designated in the declaration to act on behalf of the association. (16.5) “Horizontal boundary” means a plane of elevation relative to a described bench mark that defines either a lower or an upper dimension of a unit such that the real estate respectively below or above the defined plane is not a part of the unit.    “Identifying number” means a symbol or address that identifies only one unit in a common interest community. (17.5) “Large planned community” means a planned community that meets the criteria set forth in section 38-33.3-116.3 (1) .    “Leasehold common interest community” means a common interest community in which all or a portion of the real estate is subject to a lease, the expiration or termination of which will terminate the common interest community or reduce its size.    “Limited common element” means a portion of the common elements allocated by the declaration or by operation of section 38-33.3-202 (1)(b) or (1)(d) for the exclusive use of one or more units but fewer than all of the units. (19.5) “Map” means that part of a declaration that depicts all or any portion of a common interest community in three dimensions, is executed by a person that is authorized by this title to execute a declaration relating to the common interest community, and is recorded in the real estate records in every county in which any portion of the common interest community is located. A map is required for a common interest community with units having a horizontal boundary. A map and a plat may be combined in one instrument.    “Master association” means an organization that is authorized to exercise some or all of the powers of one or more associations on behalf of one or more common interest communities or for the benefit of the unit owners of one or more common interest communities.    “Person” means a natural person, a corporation, a partnership, an association, a trust, or any other entity or any combination thereof. (21.5) “Phased community” means a common interest community in which the declarant retains development rights.    “Planned community” means a common interest community that is not a condominium or cooperative. A condominium or cooperative may be part of a planned community. (22.5) “Plat” means that part of a declaration that is a land survey plat as set forth in section 38-51-106 , depicts all or any portion of a common interest community in two dimensions, is executed by a person that is authorized by this title to execute a declaration relating to the common interest community, and is recorded in the real estate records in every county in which any portion of the common interest community is located. A plat and a map may be combined in one instrument.    “Proprietary lease” means an agreement with the association pursuant to which a member is entitled to exclusive possession of a unit in a cooperative.    “Purchaser” means a person, other than a declarant or a dealer, who by means of a transfer acquires a legal or equitable interest in a unit, other than:   A leasehold interest in a unit of less than forty years, including renewal options, with the period of the leasehold interest, including renewal options, being measured from the date the initial term commences; or    A security interest.       “Real estate” means 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. “Real estate” includes parcels with or without horizontal boundaries and spaces that may be filled with air or water.    “Residential use” means use for dwelling or recreational purposes but does not include spaces or units primarily used for commercial income from, or service to, the public.    “Rules and regulations” means any instruments, however denominated, which are adopted by the association for the regulation and management of the common interest community, including any amendment to those instruments.    “Security interest” means an interest in real estate or personal property created by contract or conveyance which secures payment or performance of an obligation. The term includes a lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales contract, lease intended as security, assignment of lease or rents intended as security, pledge of an ownership interest in an association, and any other consensual lien or title retention contract intended as security for an obligation.    “Special declarant rights” means rights reserved for the benefit of a declarant to perform the following acts as specified in parts 2 and 3 of this article: To complete improvements indicated on plats and maps filed with the declaration; to exercise any development right; to maintain sales offices, management offices, signs advertising the common interest community, and models; to use easements through the common elements for the purpose of making improvements within the common interest community or within real estate which may be added to the common interest community; to make the common interest community subject to a master association; to merge or consolidate a common interest community of the same form of ownership; or to appoint or remove any officer of the association or any executive board member during any period of declarant control.    “Unit” means a physical portion of the common interest community which is designated for separate ownership or occupancy and the boundaries of which are described in or determined from the declaration. If a unit in a cooperative is owned by a unit owner or is sold, conveyed, voluntarily or involuntarily encumbered, or otherwise transferred by a unit owner, the interest in that unit which is owned, sold, conveyed, encumbered, or otherwise transferred is the right to possession of that unit under a proprietary lease, coupled with the allocated interests of that unit, and the association's interest in that unit is not thereby affected.    “Unit owner” means the declarant or other person who owns a unit, or a lessee of a unit in a leasehold common interest community whose lease expires simultaneously with any lease, the expiration or termination of which will remove the unit from the common interest community but does not include a person having an interest in a unit solely as security for an obligation. In a condominium or planned community, the declarant is the owner of any unit created by the declaration until that unit is conveyed to another person; in a cooperative, the declarant is treated as the owner of any unit to which allocated interests have been allocated pursuant to section 38-33.3-207 until that unit has been conveyed to another person, who may or may not be a declarant under this article.    “Vertical boundary” means the defined limit of a unit that is not a horizontal boundary of that unit.    “Xeriscape” means the combined application of the seven principles of landscape planning and design, soil analysis and improvement, hydro zoning of plants, use of practical turf areas, uses of mulches, irrigation efficiency, and appropriate maintenance under section 38-35.7-107 (1)(a)(III)(A).     History. Source: L. 91: Entire article added, p. 1702, § 1, effective July 1, 1992. L. 93: IP, (8), and (25) amended and (16.5), (19.5), (22.5), and (32) added, p. 642, § 1, effective April 30. L. 94: (17.5) added, p. 2845, § 1, effective July 1; (22.5) amended, p. 1509, § 44, effective July 1. L. 95: (2.5) added, p. 236, § 1, effective July 1. L. 97: (22.5) amended, p. 151, § 2, effective March 28. L. 98: (20) amended, p. 477, § 1, effective July 1. L. 2006: (21.5) added, p. 1215, § 1, effective May 26. L. 2013: (33) added,(SB 13-183), ch. 187, p. 757, § 2, effective May 10.    ANNOTATION   Subdivision can be a common interest community as defined in subsection (8) even if it does not include common property. Where subdivision covenants required homeowners to pay mandatory assessments for maintenance or improvement and the homeowners' association was responsible for maintenance and improvement of the subdivision and enforcement of covenants, the absence of common property in the subdivision did not preclude the subdivision from being a common interest community because the scope of the phrase “other real estate” in subsection (8) is not restricted to common property. Hiwan Homeowners Ass'n v. Knotts, 215 P.3d 1271 (Colo. App. 2009).   Based upon definition of “declaration” under subsection (13), in the absence of covenant imposing mandatory dues, homeowners association has the implied power to collect assessments from homeowners to pay for the maintenance of the common areas of the subdivision. Here, the “declarations” for the homeowners association of the subdivision in effect at the time respondent lot owner purchased his lot incorporated all documents recorded up to that date. At the time respondent lot owner purchased his lot, the declarations made clear that the homeowners association had the power to impose annual membership or use fees on lot owners. These declarations were sufficient to create a common interest community by implication, with the concomitant power to impose mandatory dues on lot owners to pay for the maintenance of common areas of the subdivision. The respondent lot owner, therefore, has an implied duty to pay his proportionate share of the cost of maintaining and operating the common area. Evergreen Highlands Ass'n v. West, 73 P.3d 1 (Colo. 2003).   Based upon definition of “declaration” in subsection (13), a plat can be part of a declaration. Giguere v. SJS Family Enters., 155 P.3d 462 (Colo. App. 2006).   “Subsequent filings” language used in declaration referenced development rights. Lots not in existence at the time declaration was recorded had yet to be created, and, as such, they represent units that could be created in the future and fall under the definition of “development rights”. Miller v. Curry, 203 P.3d 626 (Colo. App. 2009).