Chapter 12 - § 12.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 12.1 • INTRODUCTION

The Condominium Ownership Act¹ (COA) was originally enacted in 1963.² It is very basic enabling legislation. While, as previously discussed,³ the Act has been largely replaced by the Colorado Common Interest Ownership Act (CCIOA),⁴ this chapter focuses on the provisions of the COA and the cases interpreting it.

The COA recognized the condominium form of ownership of real property.⁵ It provides that, whether created before or after April 30, 1963, condominium ownership is "deemed to consist of a separate estate in an individual air space unit of a multi-unit property together with an undivided interest in common elements."⁶ The effect of that language is to subject all the estates described to the legal provisions "historically and by statute applicable to traditional estates in real property."⁷

When the COA says that a condominium is deemed to consist of a separate estate and an undivided interest in common elements, it defines condominium ownership. It requires two facets of ownership for there to be a condominium: outright ownership of an individual unit in a multi-unit property and ownership in common of the property deemed "common elements."⁸ As the Colorado Supreme Court said "the very definition of a condominium requires the existence of an undivided interest in common elements."⁹ This is consistent with traditional definitions of condominium ownership. For example, a Maryland court said: "[A] condominium unit owner . . . possesses a hybrid form of property interest: one in fee simple to the exclusion of everyone, and the other as a tenant in common with his fellow unit owners."¹⁰ A New York court gave a more detailed explication. It said condominium ownership is

a system of ownership of real property whereby a parcel of real estate and the building or buildings existing thereon are owned by more than one person, each of whom has two separate and distinct real property interests: (1) fee simple ownership of a unit or apartment; and (2) an undivided interest, together with all of the other unit owners in the project, in the common elements.¹¹

There can be no condominium without common ownership. In Trailside Townhome Ass'n v. Acierno,¹² the Colorado Supreme Court held that there was no condominium where the common areas of a townhome complex were not co-owned by individual members, but by an owners association (a nonprofit corporation).

Under the COA, the separate estate of any condominium owner of an individual air space unit and his or her common ownership of common elements appurtenant to that individual unit by the terms of the recorded declaration are inseparable for any period of condominium ownership prescribed by the recorded declaration.¹³ The Act permits condominium...