Chapter 18 - § 18.7 • ATTORNEY FEES UNDER THE COLORADO COMMON INTEREST OWNERSHIP ACT

• Jurisdiction: Colorado

§ 18.7 • ATTORNEY FEES UNDER THE COLORADO COMMON INTEREST OWNERSHIP ACT

The Colorado Common Interest Ownership Act, C.R.S. §§ 38-33.3-101, et seq, provides for attorney fees in § -123. Subsections 38-33.3-123(1)(a) and (b) allow the association to obtain attorney fees from a unit owner that fails to pay his or her assessment or fails to comply with CCIOA or the association's governing documents without the necessity of commencing a legal proceeding.

Subsection (1)(c) directs the court to award attorney fees to the prevailing party in any action to enforce or defend any provision of CCIOA or the association's governing documents. In Cody Park Property Owners' Ass'n v. Harder,⁷⁰ the court held that a party that was not a unit owner within the association could recover attorney fees under this provision when it prevailed in a lawsuit against the association. The association had attempted to terminate an easement that a unit owner had granted to a neighboring property owner outside the subdivision so the neighbor could cross a lot in the subdivision and use internal association roads. When the neighbor prevailed and requested attorney fees under C.R.S. § 38-33.3-123(1)(c), the association argued that the statute could only apply to the benefit of unit owners within the subdivision. The court of appeals compared the language in C.R.S. § 38-33.3-123(1)(d) and found that this subsection repeatedly referred to "unit owners." On the other hand, subsection (1)(c) omitted that term. The court ultimately concluded that the plain language of subsection (1)(c) does not require a prevailing party to be a "unit owner" to avail itself of the fee shifting provision.

However, in Platt v. Aspenwood Condominium Ass'n,⁷¹ the court of appeals denied an association's request for attorney fees where the litigation was over a contract to buy and sell a unit within the condominium development and was not an action "to enforce or defend the provisions of this article or of the declaration, bylaws, articles, or rules and regulations."⁷²

Subsection (1)(d) provides that in an action between the association and a unit owner where the unit owner...