Chapter 12 - § 12.3 • DEFINITIONS

• Jurisdiction: Colorado

§ 12.3 • DEFINITIONS⁴²

The COA contains only five definitions, far fewer than usually found in basic state condominium legislation.⁴³ As used in the COA, the terms that are defined apply unless the context otherwise requires.

Condominium Unit

"Condominium unit" means an individual air space unit together with the interest in the common elements appurtenant to such unit.⁴⁴

Declaration

"Declaration" is an instrument recorded pursuant to [C.R.S. §] 38-33-105 and which defines the character, duration, rights, obligations, and limitations of condominium ownership.⁴⁵

General Common Elements

Unless otherwise provided in the declaration or by written consent of all the condominium owners "general common elements" means:

• Land or the interest in land on which a building or buildings are located;
• The foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, entrances, and exits of such building or buildings;
• The basements, yards, gardens, parking areas, and storage spaces;
• The premises for the lodging of custodians or persons in charge of the property;
• Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, central air conditioning, and incinerating; the elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;⁴⁶
• Such community and commercial facilities as may be provided for in the declaration; and
• All other parts of the property necessary or convenient to its existence, maintenance, and safety, or normally in common use.⁴⁷

A Colorado Supreme Court decision creates some confusion about the meaning of "common elements."⁴⁸ In the case, a condominium was created and a single parking space was conveyed appurtenant to each condominium unit. Ten spaces were unassigned. Under the declaration, only the developer could sell those spaces to non-unit owners. The developer sold one of the unassigned spaces to a unit owner. It was eventually sold to a partnership that was not a unit owner and, for over 20 years, one of the partners used the space. When the partnership attempted to sell the space to another non-unit owner, the association objected that the sale would violate the declaration. The partnership filed a quiet title action claiming fee simple ownership of the space by adverse possession. The trial court decided the partnership owned the space in "unrestricted fee simple" and could convey it to a third-party non-condominium owner. In other words, the space was not subject to the declaration restriction. The Colorado Supreme Court, however, said that the declaration precluded the partnership from obtaining an unrestricted fee simple estate in the space. It held that the space was a common element that under the declaration could not be sold to a third party who was not a condominium owner. The court said that the partnership might be able to quiet title to the space, but it could not obtain an unrestricted fee simple estate because its deed was subject to the declaration. The problem with that conclusion is that when property is a common element, it...