Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Frisco Lot 3 LLC v. Giberson Limited Partnership
In this real property appeal, the Colorado Court of Appeals considered whether a 1989 “Planned Unit Development Designation” and plat created a common-interest community before the enactment of the Colorado Common Interest Ownership Act.
The appeals court held that a pre-CCIOA common-interest community exists when individual properties are properly individual properties are properly burdened with a servitude that imposes an obligation to either pay for the use of or contribute to the maintenance of commonly held or enjoyed property, or pay dues or assessments to an association that provides a service or enforces a servitude on commonly held or enjoyed property.
The appeals court concluded that the original owners failed to create a common-interest community and that later lot owners are not subject to a subsequently created homeowners association.
The appeals court also held that under Colorado Appellate Rule 28(h), a party may not both file a separate brief and incorporate by reference the brief of another party. It found that such a violation may result in striking any improperly incorporated argument.
The parties also raised various challenges to the trial court’s denial of a motion to dismiss, grant of summary judgment and correction of a mistake in the judgment. They also challenged the effect of the trial management order, along with the court order permitting counsel to withdraw and the court’s application of trust law to this dispute.
The appeals court affirmed in part, reversed in part and remanded with directions.