The CCIOA provides some basic standards for construing declarations.463 The provisions of the declaration are severable.464 The severance provision neither explicitly nor implicitly empowers a court to rewrite a declaration to save an otherwise defective provision.465 The rule against perpetuities is not to be applied to defeat any provision of a declaration.466 That, however, does not totally invalidate the rule in common interest communities; for deeds or devises of units, the policies underlying the rule continue to have validity and remain applicable.467 When there is a conflict between the provisions of the declaration and the bylaws, the declaration prevails, except to the extent it is inconsistent with the CCIOA.468 In Heritage Village Owners Ass'n v. Golden Heritage Investors, Ltd.,469 the court said that pursuant to that language, the CCIOA prevails over anything inconsistent in a declaration.470 Title to a unit and common elements is not rendered unmarketable or otherwise affected by an "insubstantial" failure of the declaration to comply with the CCIOA.471 The provision concerning title only applies to the marketability of units and common areas, and it was found inapplicable to the validity of a declarant's development rights.472

The CCIOA also prohibits, except as expressly provided, any attempt to vary its provisions by agreement.473 The rights conferred by the Act may not be waived, and a declarant may not act under a power of attorney or use any other device to evade the limitations or prohibitions of the CCIOA or of the declaration.474 Thus, once the declaration is recorded, the declarant — who created and, in most cases, recorded the declaration — is bound by it, at least to the extent it "limits or prohibits." That declaration may not impose limitations on the power of an association to deal with the declarant that are more restrictive than those imposed on the power of the association to deal with others.475 Note that this proscription applies only to limitations on the power of the association, not of the unit owners.476

There are also certain provisions that, if they are in a declaration, may not, under the CCIOA, be enforced. These proscriptions are discussed in greater detail elsewhere,477 but in general, they prevent an association from enforcing prohibitions on the display of American or service flags;478 the display of political signs;479 the parking of certain vehicles;480 the removal of certain vegetation;481 modifications to units in accordance with the federal Fair Housing Act of 1968;482 the right of a unit owner to restrict or specify the permissible sale price, rental rate, or lease rate of a unit;483 the use of xeriscape or drought-tolerant vegetative landscapes;484 the use of a rain barrel to collect precipitation from a residential rooftop;485 or the use of "renewable energy generation devices."486 Associations may also not require use of cedar shakes or other flammable roofing materials.487 Additionally, a Colorado statute that is not part of the CCIOA says that all restrictions as to the use or occupancy of real property must be strictly construed.488

There are also two CCIOA statutes that apply to contracts. Do they apply to declarations? In other words, is a declaration a contract? The Colorado Supreme Court has said that a contract "is a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively."489 Certainly, the parties to a common interest community declaration — the association and the unit owners — ordinarily number more than two,490 are obligated to each other, and have reciprocal rights to demand performance of what they have promised. Indeed, the CCIOA explicitly provides for a civil action to enforce or defend the declaration.491 Courts in other jurisdictions have treated declarations as contracts.492 While it does not appear that any Colorado case has specifically said that declarations are contracts, quite a few seem to have operated on the assumption that they are.493 Colorado courts have also said that the "operative documents" of a common interest community can create contractual obligations.494 Assuming then that, for purposes of the CCIOA, a declaration is a contract, it must be performed or enforced in "good faith,"495 and a clause of that contract may be found to be unconscionable and a court may refuse to enforce it.496 In the alternative, a court may apparently grant reformation.497

The declaration is also considered a "covenant running with the land."498 While it does not appear that any Colorado appellate decision has explicitly defined a declaration as a covenant — or as consisting of covenants — a number of cases have treated common interest community declarations as covenants.499

Colorado courts have applied some fundamental rules of construction to restrictive covenants, including declarations. Construction of a covenant is considered a question of law.500 Generally, the party seeking to enforce a covenant has the burden of establishing the existence of valid restrictive covenants applicable to the property.501 The goal in construing a covenant is to ascertain the intention of the parties to it,502 which controls over merely technical rules of construction and is gathered from the entire language used, considered in connection with the subject matter.503

When a court interprets a restrictive covenant, it must follow the dictates of plain English.504 The covenant's plain language must be interpreted considering its underlying purpose.505 If the language is clear,506 absent contrary equitable or legal considerations,507 the covenant will be enforced as written,508 and a court should not turn to parol evidence.509 Covenants are construed as a whole, keeping in mind their underlying purpose510 and giving effect to all their provisions.511 Indeed, every word of a covenant must be given meaning.512 Use of the plural, as in statutory construction, will include use of the singular.513 Courts refuse to rewrite covenants or add terms not contained in them.514 Some courts have said that if there are inconsistent clauses, one that is specific and another that is general, the specific clause must prevail,515 although sometimes that principle is limited to situations in which there is irreconcilable conflict,516 and that is the Colorado rule for statutory construction.517 A construction that nullifies a restrictive covenant should be avoided.518

The rules of construction used to determine if provisions of a document are ambiguous apply to protective covenants.519 When attempting to ascertain if the provisions of an instrument are ambiguous, a court must examine the language and construe it in harmony with the plain and generally accepted meaning of the words used.520 The court must consider all provisions of the document.521 Generally, a term is considered ambiguous when it is susceptible of more than one reasonable interpretation.522

If the express language of a restrictive covenant on land is ambiguous and uncertain in its application, the parties' intention is controlling and, if possible, that intention is ascertained from the "entire language of the covenant agreement in connection with the subject matter of the covenants."523 When a court interprets an unclear covenant, the court is to resolve all doubts against the restriction and in favor of free and unrestricted use of property.524 Also, any ambiguity will usually be construed against its author525 (the declarant or the association, in most cases) or anyone seeking to enforce its covenants.526 Disagreement over the meaning of a declaration does not alone make it ambiguous.527

A great deal of the litigation about restrictive covenants concerns building restrictions, for example, prohibitions on non-residential uses. There is a fairly large body of case law interpreting building restrictions. Colorado courts have held that covenants restricting uses to residential must be clearly established and strictly construed, and limitations by implication are not favored.528 The commonly used phrase "single-family dwelling" only describes the type of structure permitted, not the type of use that can be made of the property.529 A restrictive covenant provision on the type of structure that may exist does not, by itself, constitute a restriction of the premises to a particular use.530 The word "private" when used in conjunction with "residence" means single-family residence, and a restriction that limits use to "private residence purposes" precludes multi-family uses such as duplexes.531 On the other hand, child care does not violate a "residential use" requirement.532 So long as the intent of a covenant is clear — generally to protect present and future property values — covenants establishing an architectural control committee have been upheld against the contention that they lacked specific restrictions providing a framework within which the committee must act.533

Equity may fashion a remedy to effect justice suitable to the circumstances.534 The doctrine of equitable estoppel may be applied to preclude enforcement by an architectural control committee of a homeowners association of a restrictive covenant that inures to the benefit of all the owners.535 Indeed, a court of equity has the power to remove or cancel a restrictive covenant as a cloud on a title.536

When covenants have a specific procedure for modification or amendment, that procedure must be strictly followed.537 If amendments become effective at the same time, they must be read together to discern the actual intent of the parties.538 A termination provision is a component of a covenant and generally must be interpreted in accordance with principles of covenant construction.539 When covenants specifically set forth a procedure for effective transfer of authority to...

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