Chapter 3 - § 3.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 3.1 • INTRODUCTION

The CCIOA defines the "declarant" as "any person or group of persons acting in concert who . . . [a]s part of a common promotional plan, offers to dispose of to a purchaser such declarant's interest in a unit not previously disposed of to a purchaser; or . . . [r]eserves or succeeds to any special declarant right."¹ The Act does not define "succeeds,"² but a number of cases from other jurisdictions have discussed when lending institutions that acquire title to a project are considered declarants.³

The Uniform Act definition of declarant is nearly identical to that of the CCIOA.⁴ A comment to the Act says the definition is meant to exclude those who may be called on to execute the declaration — for example, holders of pre-existing liens or ground lessors in the case of a leasehold common interest community — but who are not intended to be charged with the responsibilities imposed on all declarants if that is all they do.⁵ The definition does not cover real estate brokers since they do not offer to dispose of their own interest in a unit. It also does not cover unit owners reselling their units since those units were "previously disposed of" when they were initially conveyed. The association may actually be a declarant if it offers units not previously disposed of for sale to others, either independently or in conjunction with another declarant.⁶

The "special declarant rights" that may serve to define a declarant are rights reserved for the benefit of a declarant to:

• Complete improvements indicated on plats and maps filed with the declaration.
• Exercise any development right, which means any right or combination of rights reserved by the declarant in the declaration to add real estate to a common interest community; create units, common elements, or limited common elements; subdivide units or convert units into common elements; or withdraw real estate.⁷
• Maintain sales offices, management offices, signs advertising the common interest community, and models.
• Use easements through the common elements for the purpose of making improvements within the common interest community or within real estate that may be added to the community.
• Make the community subject to a master association.
• Merge or consolidate a community of the same form of ownership.
• Appoint or remove any officer of the association or any governing board member during any period of declarant control.⁸

These special declarant rights are described more fully below.⁹

While some might be inclined to view the owner of the property on which a common interest community is...