Justia Real Estate & Property Law Opinion Summaries

Petitioner Marin Metropolitan District (the “District”) was a special district created as a vehicle to finance the infrastructure of a proposed residential community. In late 2007, the organizers of the District held an election and approved the creation of the District. At the same time, pursuant to Colorado’s Taxpayer Bill of Rights (“TABOR”), the organizers voted to approve the issuance of bonds and to impose property taxes to pay the bonds on landowners within the District. A group of condominium owners subsequently learned that their properties had been included in the District under what they believed to be suspicious circumstances and that they had been assessed property taxes to pay the bonds. Acting through their homeowners’ association, respondent Landmark Towers Association, Inc., (“Landmark”) the owners brought two lawsuits: one to invalidate the creation of the District and the other (this case) to invalidate the approval of the bonds and taxes and to recover taxes that they had paid to the District, among other things. The district court ultimately ordered a partial refund of the taxes paid by the condominium owners and enjoined the District from assessing future taxes on the owners in order to pay its obligations under the bonds. Both sides appealed, and the court of appeals concluded, in pertinent part, that Landmark’s challenge to the bond and tax election was timely and that the election violated TABOR and applicable statutes. At issue before the Colorado Supreme Court was whether Landmark’s challenge to the bond and tax election was timely and the election was validly conducted. The Supreme Court reversed, finding Section 1-11-213(4), C.R.S. (2017), required a party seeking to contest an election like that present here to file a written statement of intent to contest the election within ten days after the official survey of returns has been filed with the designated election official. Without that statement, no could had jurisdiction over the contest. Landmark’s challenge to the bond and tax election at issue was time barred, and thus, the Court reversed the judgment below and remanded for further proceedings. View "UMB Bank, N.A. v. Landmark Towers Association, Inc." on Justia Law

In 2008, Petitioners, five Colorado companies, entered into separate contracts to buy to-be-built condominium units from Respondent, developer One Ski Hill Place, LLC (“OSHP”). Petitioners paid earnest money and construction deposits of fifteen percent of the purchase price of each unit. But Petitioners were unable to obtain financing and failed to close by the agreed-upon 2010 deadline, thereby breaching the Agreements. Each Agreement contained an identical provision governing default (the “Damages Provision”), which provided, in sum, that if a purchaser of a unit defaulted, then OSHP had the option to retain all or some of the paid deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits toward that award. This case presented for the Colorado Supreme Court's review of whether the liquidated damages clause was invalid because the contract gave the non-breaching party the option to choose between liquidated damages and actual damages. The Court held that such an option does not invalidate the clause and instead parties are free to contract for a damages provision that allows a non-breaching party to elect between liquidated damages and actual damages. However, such an option must be exclusive, meaning a party who elects to pursue one of the available remedies may not also pursue the alternative remedy set forth in the contract. View "Ravenstar v. One Ski Hill Place" on Justia Law

The Colorado Supreme Court’s decision in this matter addressed appeals from two related cases: Gallegos Family Properties, LLC’s petition to de-designate a portion of the Upper Crow Creek Designated Ground Water Basin, and an order awarding the Well Owners a portion of their litigation costs. At issue was whether Gallegos satisfied the statutory standard for de-designating a portion of the Basin set forth in section 37-90-106(1)(a), C.R.S. (2003), and as interpreted by this the Court in Gallegos v. Colorado Ground Water Commission, 147 P.3d 20 (Colo. 2006), and whether Gallegos should have bourne the Well Owners’ costs. The designated groundwater court concluded that Gallegos had failed to make new showings sufficient to justify de-designating a portion of the Basin and taxed Gallegos for a portion of the Well Owners’ costs. The Supreme Court concluded that Gallegos failed to prove by evidence not before the 1987 Commission that the Well Owners were pumping water connected to Crow Creek such that future conditions and factual data justify de-designating a portion of the Basin. Because a party must show connectivity to prove impact, Gallegos failed to meet its burden, and de-designation was improper. Accordingly, the Court affirmed the designated groundwater court’s order denying Gallegos’s petition. Furthermore, because the designated groundwater court properly denied Gallegos’s petition for de-designation, the Supreme Court concluded that the court did not abuse its discretion in concluding that the Well Owners were prevailing parties for purposes of C.R.C.P. 54(d), that the costs awarded were reasonable and necessary, and that Gallegos should pay these costs pursuant to Rule 54(d). View "Gallegos Family Properties, LLC v. Colorado Groundwater Commission" on Justia Law

This case centered on whether the Colorado Common Interest Ownership Act (“CCIOA”) permitted a developer–declarant to retain a right of consent to certain proposed amendments to a common interest community’s declaration. Petitioner Vallagio at Inverness Residential Condominium Association, Inc. (the “Association”), sought damages for alleged construction defects in the Vallagio at Inverness residential development project (the “Project”), a community organized under CCIOA. The Project’s developer and declarant, respondent Metro Inverness, LLC (the “Declarant”), drafted and recorded the Project’s original declaration, which set forth specific dispute resolution procedures for construction defect claims. As pertinent here, certain provisions of the original declaration: (1) required that all construction defect claims be resolved through binding arbitration; and (2) provided that the provisions governing such claims “shall not ever be amended” without the Declarant’s written consent. Shortly before the Association filed the present action, and without obtaining the Declarant’s consent, the requisite number of the Project’s unit owners voted to amend the declaration to delete the foregoing dispute resolution provisions. The Declarant moved to compel arbitration, arguing that the attempted declaration amendment was ineffective absent its written consent and, thus, the Association was bound by the arbitration provision contained in the original declaration. The district court denied the Declarant’s motion, reasoning in pertinent part that the consent-to-amend provision violated and was therefore void under CCIOA. The Colorado Supreme Court concluded that the consent-to-amend provision contained in the Project’s original declaration was consistent with CCIOA and was therefore valid and enforceable. Furthermore, the Court concluded that because the unit owners did not obtain the Declarant’s consent to remove the arbitration provision, the attempted removal was ineffective, and the declaration’s arbitration agreement remained in force. View "Vallagio at Inverness Residential Condo. Assn. v. Metro. Homes, Inc." on Justia Law

In a construction-defect matter filed by a homeowners’ association (HOA) against several developers, an attorney for the HOA previously represented one of the developers. The developers moved to disqualify that attorney under Rules 1.9 and 1.10 of the Colorado Rules of Professional Conduct. The trial court denied the motion, without what the Colorado Supreme Court described as “meaningfully analyzing for purposes” of Rule 1.9 whether this case was “substantially related” to the prior matters in which the attorney represented the developer. Instead, the Court found the trial court relied on issue preclusion, and found that in this situation, the attorney was not disqualified to represent the developer. The Supreme Court concluded the trial court erred by not analyzing the facts of this case under Rule 1.9, and therefore vacated the denial of the developers’ motion, and remanded for further proceedings. View "In re Villas at Highland Park Homeowners Assoc. v. Villas at Highland Park, LLC" on Justia Law

Select Energy Services, LLC, wanted to run a water pipeline across an old, partly destroyed irrigation ditch alongside the South Platte River. An easement arising from a water right long associated with that ditch stood in its way. K-LOW, LLC owned the easement, and attempted to block Select’s pipeline as a trespass. Yet, because the water right supporting the easement recently changed, K-LOW’s easement might no longer exist. Whether the easement existed turned on the scope of the underlying water right. Absent that water right, K-LOW’s trespass claim failed. The water court found no right to divert water from the ditch, and the Colorado Supreme Court agreed with its determination. Because, by its plain language, the decree defining the water right allowed its holder to divert water only at the pump downriver from the disputed ditch, the Court concluded the decree did not include a right to divert water from that ditch. View "Select Energy Servs., LLC v. K-LOW, LLC" on Justia Law

Because the plain language of the exculpatory clauses at issue in this case did not limit the homeowner’s association’s liability, and the association, as an entity distinct from internal boards acting as its agents, could not benefit from exculpatory clauses protecting those agents, the Colorado Supreme Court concluded the petitioners could bring their claims against the association. Petitioners Mac McShane and Cynthia Calvin had hoped to build a multistory home overlooking the Roaring Fork Valley. After belatedly discovering their design for that home exceeded county height regulations, they ended up with something less: a one-story home and an attached “pod.” Making the required changes proved costly, and they sued the homeowners association which allegedly improperly approved the architectural plans, then later allegedly improperly denied approval of revised plans. View "McShane v. Stirling Ranch Property Owners Association, Inc." on Justia Law

In 1990, after Denver determined that it needed a new airport, a group of citizens formed the Stapleton Redevelopment Foundation to develop the former Stapleton International Airport. The Stapleton Redevelopment Foundation created a master plan to convert the former airport site. In 1995, the private, nonprofit Stapleton Development Corporation (“SDC”) was formed to lease and sell the former airport property. SDC selected Forest City as the master developer for redevelopment of the property. Forest City sold the vacant residential lot at issue here to a professional home builder, Infinity Home Collection at Stapleton, LLC (Infinity), with whom Respondent/Cross-Petitioner Tad Rogers had contracted to build a home. When Infinity purchased the lot from Forest City, the lot was vacant, did not have utilities, and still needed to be graded to its final configurations. Rogers ultimately purchased the lot and the home from Infinity. The home included a foundation drain system designed to collect ground water into a sump pit and to pump that water into the yard by way of a sump pump. Because of the high water table beneath his house, coupled with calcite leaching from the recycled concrete aggregate base course used to construct the roads, calcite built up in the foundation drain around Rogers' house. In turn, this water and calcite buildup made his basement uninhabitable and caused his sump pump to run and discharge more water. This case presented an issue of whether contractual privity was necessary for a home buyer to assert a claim for breach of the implied warranty of suitability against a developer. The Colorado Supreme Court held that, because breach of the implied warranty of suitability was a contract claim, privity of contract was required in such a case. Here, because the home buyer did not have contractual privity with the developer, he could not pursue a claim against the developer for breach of the implied warranty of suitability. View "Forest City v. Rogers" on Justia Law

This case concerned the relative priority of competing charging orders filed by 15 multiple judgment creditors against a foreign judgment debtor’s membership interests 16 in several Colorado limited liability companies. In July 2013, Chase Bank obtained an Arizona judgment of over $20 million against several defendants, including Reginald Fowler, an Arizona resident. As part of its postjudgment collection efforts, Chase obtained Arizona orders charging Fowler’s membership interests in three Colorado limited liability companies. In March 2014, respondents Douglas McClure, Nancy McClure, and Spiral Broadcasting, L.L.C. (collectively, “the McClures”), obtained a stipulated judgment for $1.5 million against Fowler, among others, in the Arizona Superior Court. In April 2014, the McClures domesticated their Arizona judgment in Colorado, and between May and July 2014, they obtained and served Colorado orders charging Fowler’s membership interests in the LLCs. Now confronted with facially competing charging orders, the LLCs paid Fowler’s then-due distributions into the Colorado District Court registry. That same day, the McClures moved for release of the distribution funds to them, and several days later, Chase sought and obtained leave to intervene and opposed the McClures’ motion. The district court ultimately ordered the distribution funds released to the McClures. Chase then domesticated its Arizona charging orders with a different Colorado District Court, and moved for reconsideration of the release order, arguing that its newly-domesticated charging orders should be deemed effective as of the date they were issued in Arizona and entitled to priority over the McClures’ charging orders. The Colorado Supreme Court concluded first that for purposes of determining the enforceability of a charging order, a membership interest of a non-Colorado citizen in a Colorado limited liability company is located in Colorado. We further conclude that when, as here, a judgment creditor obtains a foreign charging order that compels certain action by a Colorado limited liability company, the charging order is ineffective as against the limited liability company until the creditor has taken sufficient steps to obligate the company to comply with that order. Although the authorities are not uniform as to the steps to be taken, under any of the applicable scenarios, the charging orders obtained by Chase did not become effective until after the respondents had obtained and served competing charging orders. The Court thus concluded that the McClures’ charging orders were entitled to priority over Chase’s competing charging orders. View "JPMorgan Chase Bank N.A. v. McClure" on Justia Law

This case centered on the design and construction of a single-family residence in Pitkin County, Colorado. Heritage Builders, Inc. (“Heritage”) was retained as the general contractor by the original owners of the property, Karen and Courtney Lord. Pitkin County issued a certificate of occupancy for the home in September 2006. In November 2011, Richard Goodman purchased the property from the Lords. Then, sometime between March and June 2012, Goodman discovered the alleged construction defects in the home. Goodman gave Heritage informal notice of his construction defect claims in July 2013. In this original proceeding, the issue presented for the Colorado Supreme Court’s review was whether the statute of repose in section 13-80-104(1)(a), C.R.S. (2016), barred a general contractor’s third-party claims brought in response to a homeowner’s claim for construction defects discovered in the fifth or sixth year following substantial completion of an improvement to real property. The Court held that such claims were timely, irrespective of both the two-year statute of limitations in section 13-80-102, C.R.S. (2016), and the six-year statute of repose in section 13-80-104(1)(a), so long as they are brought at any time before the ninety-day timeframe outlined in section 13-80-104(1)(b)(II). View "In re Goodman v. Heritage Builders" on Justia Law