The Influence of the U.s. Constitution on Colorado Real Property Law

• Jurisdiction: Colorado,United States,Federal
• Citation: Vol. 09 No. 1987 Pg. 1603
• Pages: 1603
• Publication year: 1987

16 Colo.Law. 1603 Colorado Lawyer 1987.

1987, September, Pg. 1603. The Influence of the U.S. Constitution On Colorado Real Property Law

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The Influence of the U.S. Constitution On Colorado Real Property Law

by Joel S. Thompson

The U.S. Constitution was designed to leave the individual states broad powers to determine and establish the law governing the ownership, use, possession, conveyance and distribution of real property. The power to develop the law of real property was not delegated to the federal government, but was reserved to the states by the Tenth Amendment.(fn1) It has been stated:

[T]he devolution of title to real estate, and the acquisition of an interest therein, the modes of conveying or encumbering it, and the burdens that may be imposed upon it, within constitutional guaranties, are subject to the power of the state in which it is situated.(fn2)

The use of real property may be controlled in the exercise of the state's police power in the interest of the public health, safety and welfare.(fn3)

The broad power of the state to govern the ownership, use and conveyance of real property is demonstrated by constitutional challenges to zoning ordinances. Generally, zoning ordinances are challenged on the basis that they are not related to a legitimate public purpose or that they deprive an owner of the use of property without compensation.(fn4) The definition of legitimate public purpose is so broad as to include ordinances designed solely for the protection of aesthetics.(fn5) Restrictions on land use will be upheld, without payment of just compensation, unless it is shown that the ordinance "precludes the use of [the] property for any reasonable purpose."(fn6)

Recently, the Colorado Supreme Court upheld an ordinance of the City and County of Denver protecting mountain views from constitutional challenges under the Fourteenth Amendment of the U.S. Constitution, holding that purely aesthetic ordinances serve a legitimate governmental function. Although the value of the property affected by the mountain view ordinance was substantially reduced and no compensation was paid to the property owners, because the owners had not been deprived of all reasonable use of the property, the court found the ordinance to be constitutional.(fn7)

Although broad, the power of the state to establish the law of real property is limited by the U.S. Constitution. Congress has also used its power under various provisions of the Constitution to enact legislation relating to the use and conveyance of real property, even though such legislation may not have been intended by the drafters.(fn8) This article discusses the influence of the U.S. Constitution on real property law in Colorado.

Restrictive Covenants and Equal Protection

There was a time U.S. history when covenants prohibiting the ownership or use of real property by the wrong race or religion were as common as those prohibiting the sale of liquor or bawdy behavior. Such covenants are also found in Colorado. The Colorado Supreme Court had the opportunity to review the validity of such covenants under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution in Capital Federal Savings and Loan Association v. Smith.(fn9)

Capital Federal Savings involved an agreement among owners of certain lots in the City and County of Denver that the lots would not be sold or leased to "colored persons" and that title to any lots sold or leased in violation of the agreement would be forfeited to the owners of the other lots. Owners of lots could assert title to the lot conveyed or leased in violation of the agreement by recording a notice of claim. The agreement also provided aggrieved lot owners the right to sue for damages and for injunctive and other equitable relief.

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The Smiths, members of the proscribed race, sought to have the covenant declared void and title to the subject property quieted in them. The Armelins, who sought to enforce the agreement, also sought a decree quieting their title to the property, having filed a notice of claim pursuant to the agreement. The trial court declared that the covenant could not be enforced and quieted title in the Smiths

The U.S. Supreme Court had previously held in Shelley v. Kraemer(fn10) that judicial enforcement of racially restrictive covenants violated the equal protection clause of the Fourteenth Amendment. This decision suggested that such covenants were not invalid per se, however, and a number of state courts subsequently allowed an action for damages against a party conveying or leasing property in violation of such covenants. These decisions caused the Court to revisit the problem in Barrows v. Jackson.(fn11) In Barrows, the court held that although an award of damages against a grantor for violation of a racially restrictive covenant may not technically violate the Fourteenth Amendment, "the commodious protection" of the...