2023 Colorado Revised Statutes › Title 38 - PROPERTY - REAL AND PERSONAL (§§ 38-1-101 — 38-53-110) › REAL PROPERTY (§§ 38-30-101 — 38-46-104) › INTERESTS IN LAND (§§ 38-30-101 — 38-34-106) › Article 33.3 - COLORADO COMMON INTEREST OWNERSHIP ACT (§§ 38-33.3-101 — 38-33.3-402) › Part 1 - GENERAL PROVISIONS (§§ 38-33.3-101 — 38-33.3-124) › Section 38-33.3-106.5 - [Effective until 8/7/2024] Prohibitions contrary to public policy - patriotic, political, or religious expression - public rights-of-way - fire prevention - renewable energy generation devices - affordable housing - drought prevention measures - child care - definitions

(1)
Notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not prohibit any of the following:
(a)
The display of a flag on a unit owner's property, in a window of the unit, or on a balcony adjoining the unit. The association shall not prohibit or regulate the display of flags on the basis of their subject matter, message, or content; except that the association may prohibit flags bearing commercial messages. The association may adopt reasonable, content-neutral rules to regulate the number, location, and size of flags and flagpoles, but shall not prohibit the installation of a flag or flagpole.
(b)
Repealed.
(c)
The display of a sign by the owner or occupant of a unit on property within the boundaries of the unit or in a window of the unit. The association shall not prohibit or regulate the display of window signs or yard signs on the basis of their subject matter, message, or content; except that the association may prohibit signs bearing commercial messages. The association may establish reasonable, content-neutral sign regulations based on the number, placement, or size of the signs or on other objective factors.
(c.5)
(I)
The display of a religious item or symbol on the entry door or entry door frame of a unit; except that an association may prohibit the display or affixing of an item or symbol to the extent that it:
(A)
Threatens public health or safety;
(B)
Hinders the opening or closing of an entry door;
(C)
Violates federal or state law or a municipal ordinance;
(D)
Contains graphics, language, or any display that is obscene or otherwise illegal; or
(E)
Individually or in combination with other religious items or symbols, covers an area greater than thirty-six square inches.
(II)
If an association is performing maintenance, repair, or replacement of an entry door or door frame that serves a unit owner's separate interest, the unit owner may be required to remove a religious item or symbol during the time the work is being performed. After completion of the association's work, the unit owner may again display or affix the religious item or symbol. The association shall provide individual notice to the unit owner regarding the temporary removal of the religious item or symbol.
(III)
As used in this subsection (1)(c.5), "religious item or symbol" means an item or symbol displayed because of a sincerely held religious belief.
(d)
The parking of a motor vehicle by the occupant of a unit on a street, driveway, or guest parking area in the common interest community if the vehicle is required to be available at designated periods at such occupant's residence as a condition of the occupant's employment and all of the following criteria are met:
(I)
The vehicle has a gross vehicle weight rating of ten thousand pounds or less;
(II)
The occupant is a bona fide member of a volunteer fire department or is employed by a primary provider of emergency fire fighting, law enforcement, ambulance, or emergency medical services;
(III)
The vehicle bears an official emblem or other visible designation of the emergency service provider; and
(IV)
Parking of the vehicle can be accomplished without obstructing emergency access or interfering with the reasonable needs of other unit owners or occupants to use streets, driveways, and guest parking spaces within the common interest community.
(d.5)
(I)
The use of a public right-of-way in accordance with a local government's ordinance, resolution, rule, franchise, license, or charter provision regarding use of the public right-of-way. Additionally, the association shall not require that a public right-of-way be used in a certain manner.
(II)
As used in this subsection (1)(d.5), "local government" means a statutory or home rule county, municipality, or city and county.
(e)
The removal by a unit owner of trees, shrubs, or other vegetation to create defensible space around a dwelling for fire mitigation purposes, so long as such removal complies with a written defensible space plan created for the property by the Colorado state forest service, an individual or company certified by a local governmental entity to create such a plan, or the fire chief, fire marshal, or fire protection district within whose jurisdiction the unit is located, and is no more extensive than necessary to comply with such plan. The plan shall be registered with the association before the commencement of work. The association may require changes to the plan if the association obtains the consent of the person, official, or agency that originally created the plan. The work shall comply with applicable association standards regarding slash removal, stump height, revegetation, and contractor regulations.
(f)
(Deleted by amendment, L. 2006, p. 1215, § 2, effective May 26, 2006.)
(g)
Reasonable modifications to a unit or to common elements as necessary to afford a person with disabilities full use and enjoyment of the unit in accordance with the federal "Fair Housing Act of 1968",
42 U.S.C. sec. 3604 (f)(3)(A)
;
(h)
(I)
The right of a unit owner, public or private, to restrict or specify by deed, covenant, or other document:
(A)
The permissible sale price, rental rate, or lease rate of the unit; or
(B)
Occupancy or other requirements designed to promote affordable or workforce housing as such terms may be defined by the local housing authority.
(II)
(A)
Notwithstanding any other provision of law, the provisions of this subsection (1)(h) shall only apply to a county the population of which is less than one hundred thousand persons and that contains a ski lift licensed by the passenger tramway safety board created in section
12-150-104 (1)
.
(B)
The provisions of this paragraph (h) shall not apply to a declarant-controlled community.
(III)
Nothing in subparagraph (I) of this paragraph (h) shall be construed to prohibit the future owner of a unit against which a restriction or specification described in such subparagraph has been placed from lifting such restriction or specification on such unit as long as any unit so released is replaced by another unit in the same common interest community on which the restriction or specification applies and the unit subject to the restriction or specification is reasonably equivalent to the unit being released in the determination of the beneficiary of the restriction or specification.
(IV)
Except as otherwise provided in the declaration of the common interest community, any unit subject to the provisions of this paragraph (h) shall only be occupied by the owner of the unit.
(i)
(I)
(A)
The use of xeriscape, nonvegetative turf grass, or drought-tolerant vegetative landscapes to provide ground covering to property for which a unit owner is responsible, including a limited common element or property owned by the unit owner. Associations may adopt and enforce design or aesthetic guidelines or rules that apply to nonvegetative turf grass and drought-tolerant vegetative landscapes or regulate the type, number, and placement of drought-tolerant plantings and hardscapes that may be installed on a unit owner's property or on a limited common element or other property for which the unit owner is responsible. An association may restrict the installation of nonvegetative turf grass to rear yard locations only. This subsection (1)(i)(I)(A), as amended by Senate Bill 23-178, enacted in 2023, applies only to a unit that is a single-family home that shares one or more walls with another unit and does not apply to a unit that is a detached single-family home.
(B)
This subsection (1)(i), as amended by House Bill 21-1229, enacted in 2021, does not apply to an association that includes time share units, as defined in section
38-33-110 (7)
.
(II)
This paragraph (i) does not supersede any subdivision regulation of a county, city and county, or other municipality.
(i.5)
(I)
The use of xeriscape, nonvegetative turf grass, or drought-tolerant or nonvegetative landscapes to provide ground covering to property for which a unit owner is responsible, including a limited common element or property owned by the unit owner and any right-of-way or tree lawn that is the unit owner's responsibility to maintain. Associations may adopt and enforce design or aesthetic guidelines or rules that apply to drought-tolerant vegetative or nonvegetative landscapes or to vegetable gardens or that regulate the type, number, and placement of drought-tolerant plantings and hardscapes that may be installed on property that is subject to the guidelines or rules; except that the guidelines or rules must:
(A)
Not prohibit the use of nonvegetative turf grass in the backyard of a unit owner's property;
(B)
Not unreasonably require the use of hardscape on more than twenty percent of the landscaping area of a unit owner's property;
(C)
Allow a unit owner an option that consists of at least eighty percent drought-tolerant plantings; and
(D)
Not prohibit vegetable gardens in the front, back, or side yard of a unit owner's property. As used in this subsection (1)(i.5), "vegetable garden" means a plot of ground or an elevated soil bed in which pollinator plants, flowers, or vegetables or herbs, fruits, leafy greens, or other edible plants are cultivated.
(II)
For the purposes of this subsection (1)(i.5), each association shall select at least three preplanned water-wise garden designs that are preapproved for installation in front yards within the common interest community. To be preapproved, a garden design must adhere to the principles of water-wise landscaping, as defined in section
37-60-135 (2)(l)
, which emphasize drought-tolerant and native plants, or be part of a water conservation program operated by a local water provider. Each garden design may be selected from the Colorado state university extension Plant Select organization's "downloadable designs" list or from a municipality, utility, or other entity that creates such garden designs. An association shall consider a unit owner's use of one of the garden designs selected by the association to be preapproved as complying with the association's aesthetic guidelines and shall allow a unit owner to use reasonable substitute plants when a plant in a design isn't available. Each association shall post on its public website, if any, information concerning preapprovals of garden designs.
(III)
Except as described in subsection (1)(i.5)(IV) of this section, if an association knowingly violates this subsection (1)(i.5), a unit owner who is affected by the violation may bring a civil action to restrain further violation and to recover up to a maximum of five hundred dollars or the unit owner's actual damages, whichever is greater.
(IV)
Before a unit owner commences a civil action as described in subsection (1)(i.5)(III) of this section, the unit owner shall notify the association in writing of the violation and allow the association forty-five days after receipt of the notice to cure the violation.
(V)
Nothing in this subsection (1)(i.5) shall be construed to prohibit or restrict the authority of associations to:
(A)
Adopt bona fide safety requirements consistent with applicable landscape codes or recognized safety standards for the protection of persons and property;
(B)
Prohibit or restrict changes that interfere with the establishment and maintenance of fire buffers or defensible spaces; or
(C)
Prohibit or restrict changes to existing grading, drainage, or other structural landscape elements necessary for the protection of persons and property.
(VI)
Notwithstanding any provision of this section to the contrary, this subsection (1)(i.5) applies only to a unit that is a single-family detached home and does not apply to:
(A)
A unit that is a single-family attached home that shares one or more walls with another unit; or
(B)
A condominium.
(j)
(I)
The use of a rain barrel, as defined in section
37-96.5-102 (1)
, C.R.S., to collect precipitation from a residential rooftop in accordance with section
37-96.5-103
, C.R.S.
(II)
This paragraph (j) does not confer upon a resident of a common interest community the right to place a rain barrel on property or to connect a rain barrel to any property that is:
(A)
Leased, except with permission of the lessor;
(B)
A common element or a limited common element of a common interest community;
(C)
Maintained by the unit owners' association for a common interest community; or
(D)
Attached to one or more other units, except with permission of the owners of the other units.
(III)
A common interest community may impose reasonable aesthetic requirements that govern the placement or external appearance of a rain barrel.
(k)
(I)
The operation of a family child care home, as defined in section
26.5-5-303
, that is licensed pursuant to part 3 of article
5
of title
26.5
.
(II)
This subsection (1)(k) does not supersede any of the association's regulations concerning architectural control, parking, landscaping, noise, or other matters not specific to the operation of a business per se. The association shall make reasonable accommodation for fencing requirements applicable to licensed family child care homes.
(III)
This subsection (1)(k) does not apply to a community qualified as housing for older persons under the federal "Housing for Older Persons Act of 1995", as amended, Pub.L. 104-76.
(IV)
The association may require the owner or operator of a family child care home located in the common interest community to carry liability insurance, at reasonable levels determined by the association's executive board, providing coverage for any aspect of the operation of the family child care home for personal injury, death, damage to personal property, and damage to real property that occurs in or on the common elements, in the unit where the family child care home is located, or in any other unit located in the common interest community. The association shall be named as an additional insured on the liability insurance the family child care home is required to carry, and such insurance must be primary to any insurance the association is required to carry under the terms of the declaration.
(1.5)
Notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not effectively prohibit renewable energy generation devices, as defined in section
38-30-168
.
(2)
Notwithstanding any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not require the use of cedar shakes or other flammable roofing materials.
(3)
(a)
Except as provided in subsection (3)(c) of this section, any provision in the declaration, bylaws, or rules and regulations of an association on the effective date of this subsection (3) that prohibits the installation, use, or maintenance of fire-hardened building materials on a unit owner's property is void and unenforceable.
(b)
On and after the effective date of this subsection (3), Except as provided in subsection (3)(c) of this section, an association shall not:
(I)
Prohibit the installation, use, or maintenance of fire-hardened building materials on a unit owner's property; or
(II)
Adopt any provision in the declaration, bylaws, or rules and regulations of the association that prohibits the installation, use, or maintenance of fire-hardened building materials on a unit owner's property.
(c)
An association may develop standards that impose reasonable restrictions on the design, dimensions, placement, or external appearance of fire-hardened building materials used for fencing so long as the standards do not:
(I)
Increase the cost of the fencing by more than ten percent compared to other fire-hardened building materials used for fencing; or
(II)
Require a period of review and approval that exceeds sixty days after the date on which the application for review is filed. If an application for installation of fire-hardened building materials for fencing is not denied or returned for modifications within sixty days after the application is filed, the application is deemed approved. The review process must be transparent and the basis for denial of an application must be described in reasonable detail and in writing. Denial of an application must not be arbitrary or capricious.
(d)
Nothing in this subsection (3):
(I)
Prohibits or restricts a unit owners' association from adopting bona fide safety requirements that are consistent with applicable building codes or nationally recognized safety standards; or
(II)
Confers upon a property owner the right to construct or place Fire-hardened building materials on property that is:
(A)
Owned by another person;
(B)
Leased, except with permission of the lessor; or
(C)
A limited common element or general common element of a common interest community.
(e)
As used in this subsection (3):
(I)
"Fire-hardened building materials" means materials that meet:
(A)
The criteria of ignition-resistant construction set forth in sections 504 to 506 of the most recent version of the International Wildland-urban Interface Code;
(B)
The criteria for construction in wildland areas set forth in the most recent version of the NFPA standard 1140, "Standard for Wildland Fire Protection", and the criteria for reducing structure ignition hazards from wildland fire set forth in the most recent version of the NFPA standard 1144, "Reducing Structure Ignitions from Wildland Fire"; or
(C)
The requirements for a wildfire-prepared home established by the IBHS.
(II)
"IBHS" means the Insurance Institute for Business and Home Safety or its successor organization.
(III)
"NFPA" means the National Fire Protection Association or its successor organization.
(4)
(a)
In a subject jurisdiction or an accessory dwelling unit supportive jurisdiction, no provision of a declaration, bylaw, or rule of an association that is adopted on or after the effective date of this subsection (4) may restrict the creation of an accessory dwelling unit as an accessory use to any single-unit detached dwelling in any way that is prohibited by section 29-35-103, and any provision of a declaration, bylaw, or rule that includes such a restriction is void as a matter of public policy.
(b)
In a subject jurisdiction or an accessory dwelling unit supportive jurisdiction, no provision of a declaration, bylaw, or rule of an association that is adopted before the effective date of this subsection (4) may restrict the creation of an accessory dwelling unit as an accessory use to any single-unit detached dwelling in any way that is prohibited by section 29-35-103, and any provision of a declaration, bylaw, or rule that includes such a restriction is void as a matter of public policy.
(c)
Subsections (4)(a) and (4)(b) of this section do not apply to reasonable restrictions on accessory dwelling units. As used in this subsection (4)(c), "reasonable restriction" means a substantive condition or requirement that does not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit consistent with part 1 of article 35 of title 29.
(d)
As used in this subsection (4), unless the context otherwise requires:
(I)
"Accessory dwelling unit" has the same meaning as set forth in section 29-35-102 (2).
(II)
"Accessory dwelling unit supportive jurisdiction" has the same meaning as set forth in section 29-35-102 (3).
(III)
"Subject jurisdiction" has the same meaning as set forth in section 29-35-102 (21).
(5)
(a)
In a transit center or neighborhood center, an association shall not adopt a provision of a declaration, bylaw, or rule on or after the effective date of this subsection (5) that restricts the development of housing more than the local law that applies within the transit center or neighborhood center, and any provision of a declaration, bylaw, or rule that includes such a restriction is void as a matter of public policy.
(b)
In a transit center or neighborhood center, no provision of a declaration, bylaw, or rule of an association that is adopted before the effective date of this subsection (5) may restrict the development of housing more than the local law that applies within the transit center or neighborhood center, and any provision of a declaration, bylaw, or rule that includes such a restriction is void as a matter of public policy.
(c)
As used in this subsection (5), unless the context otherwise requires:
(I)
"Local law" has the same meaning as set forth in section 29-37-102 (11).
(II)
"Neighborhood center" has the same meaning as set forth in section 29-37-202 (5).
(III)
"Transit center" has the same meaning as set forth in section 29-37-202 (10).
(6)
(a)
An association shall not prohibit or restrict the construction of accessory dwelling units or middle housing if the zoning laws of the local jurisdiction would otherwise allow such uses on a property. This subsection (6)(a) applies only to any declaration recorded on or after July 1, 2024, or in any bylaws or rules and regulations of the association adopted or amended on or after July 1, 2024, unless the declaration, bylaws, or rules and regulations contained such a restriction as of the effective date of this subsection (6)(a).
(b)
As used in this subsection (6), unless the context otherwise requires:
(I)
"Accessory dwelling unit" means an internal, attached, or detached dwelling unit that is located on the same lot as a proposed or existing primary residence.
(II)
"Middle housing" means a residential structure or structures that include between two and four separate dwelling units in a structure, a townhome building, or a cottage cluster of up to four units.
Amended by 2024 Ch. 290,§ 4, eff. 5/30/2024.
Amended by 2024 Ch. 168,§ 4, eff. 5/13/2024.
Amended by 2024 Ch. 167,§ 6, eff. 5/13/2024.
Amended by 2024 Ch. 24,§ 2, eff. 3/12/2024.
Amended by 2023 Ch. 207,§ 1, eff. 8/7/2023.
Amended by 2022 Ch. 156, § 1, eff. 8/10/2022.
Amended by 2022 Ch. 123, § 123, eff. 7/1/2022.
Amended by 2021 Ch. 415, § 1, eff. 9/7/2021.
Amended by 2021 Ch. 409, § 3, eff. 9/7/2021.
Amended by 2020 Ch. 250, § 1, eff. 9/14/2020.
Amended by 2020 Ch. 188, § 3, eff. 6/30/2020.
Amended by 2019 Ch. 136, § 233, eff. 10/1/2019.
Amended by 2019 Ch. 25, § 1, eff. 3/7/2019.
Amended by 2016 Ch. 161, § 3, eff. 8/10/2016.
Amended by 2013 Ch. 187, § 3, eff. 5/10/2013.
L. 2005: Entire section added, p. 1373, § 2, effective June 6. L. 2006: (1)(a), (1)(b), (1)(c), IP(1)(d), (1)(d)(II), (1)(d)(IV), and (1)(f) amended and (2) added, p. 1215, § 2, effective May 26. L. 2008: (1)(g) added, p. 556, § 1, effective July 1; (1.5) added, p. 620, § 3, effective August 5. L. 2009: (1)(h) added, (HB 09-1220), ch. 732, p. 732, § 1, effective August 5. L. 2013: (1)(i) added, (SB 13-183), ch. 757, p. 757, § 3, effective May 10. L. 2016: (1)(j) added, (HB 16-1005), ch. 511, p. 511, § 3, effective August 10. L. 2019: (1)(i)(I) amended, (HB 19 -1050), ch. 84, p. 84, § 1, effective March 7; (1)(h)(II)(A) amended, (HB 19-1172), ch. 1723, p. 1723, § 233, effective October 1. L. 2020: (1)(c.5) added, (HB 20-1200), ch. 861, p. 861, § 3, effective June 30; (1)(k) added, (SB 20-126), ch. 1222, p. 1222, § 1, effective September 14. L. 2021: (1)(a) and (1)(c) amended and (1)(b) repealed, (SB 21-1310), ch. 2766, p. 2766, § 1, effective September 7; (1)(i)(I) amended, (HB 21-1229), ch. 2708, p. 2708, § 3, effective September 7.
Section 5 of chapter 409 (HB 21-1229), Session Laws of Colorado 2021, provides that the act changing this section applies to conduct occurring on or after September 7, 2021.
2023 Ch. 207, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2022 Ch. 156, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2021 Ch. 415, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2021 Ch. 409, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
This section is set out more than once due to postponed, multiple, or conflicting amendments.