v. Brooks Towers Residences

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 1, 2021

2021COA87

No. 19CA2076, Accetta v. Brooks Towers Residences —
Common Interest Communities — Colorado Common Interest
Ownership Act — Procedure to Elect Treatment

In this case, a division of the court of appeals considers

whether section 38-33.3-118, C.R.S. 2020, provides the exclusive

means for a common interest community association that existed

prior to the effective date of the Colorado Common Interest

Ownership Act (CCIOA) to elect to be governed by the entirety of

CCIOA. Concluding that it does, the division rejects the argument

that such an election can be made simply by recording a new

declaration that might be interpreted to adopt the provisions of

CCIOA.

The division therefore affirms the trial court’s grant of

summary judgment in favor of defendants, an association and its
individual board members, on a declaratory judgment claim

brought by two residents under CCIOA. The division also affirms

the trial court’s grant of summary judgment in favor of defendants

on the residents’ common law claims. Finally, the division

concludes that defendants are entitled to recover their appellate

attorney fees under section 38-33.3-123(1)(c), C.R.S. 2020, and

remands the case to the trial court to determine the amount of such

fees and award them to defendants.
COLORADO COURT OF APPEALS 2021COA87

Court of Appeals No. 19CA2076
City and County of Denver District Court No. 17CV34787
Honorable Morris B. Hoffman, Judge

Anthony T. Accetta and Nancy Accetta,

Plaintiffs-Appellants,

v.

Brooks Towers Residences Condominium Association, Inc., a Colorado
nonprofit corporation; Mark Trenka, in his capacity as a member of the Board
of Directors of the Brooks Towers Residences Condominium Association, Inc.;
Marla Grant, in her capacity as a member of the Board of Directors of the
Brooks Towers Residences Condominium Association, Inc.; Bill Clarke, in his
capacity as a member of the Board of Directors of the Brooks Towers
Residences Condominium Association, Inc.; Clay Courter, in his capacity as a
member of the Board of Directors of the Brooks Towers Residences
Condominium Association, Inc.; Robb Green, in his capacity as a member of
the Board of Directors of the Brooks Towers Residences Condominium
Association, Inc.; and Joan Foster, in her capacity as a member of the Board of
Directors of the Brooks Towers Residences Condominium Association, Inc.,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE GOMEZ
Furman and Tow, JJ., concur

Announced July 1, 2021

Foley & Mansfield, PLLP, Dustin J. Priebe, Englewood, Colorado; Podoll &
Podoll, P.C., Robert C. Podoll, Greenwood Village, Colorado for Plaintiffs-
Appellants
Nemirow Perez P.C., Ronald H. Nemirow, Miles Buckingham, Lakewood,
Colorado, for Defendants-Appellees
¶1 In this case, we are asked to resolve an issue of first

impression under the Colorado Common Interest Ownership Act

(CCIOA), sections 38-33.3-101 to -401, C.R.S. 2020, which governs

the creation and operation of common interest communities in the

state.

¶2 Specifically, we consider whether section 38-33.3-118, C.R.S.

2020, provides the exclusive means for a common interest

community association that existed prior to the effective date of

CCIOA to elect to be governed by the entirety of CCIOA. We

conclude that it does and, in doing so, reject the argument that

such an election can be made simply by recording a new

declaration that might be interpreted to adopt the provisions of

CCIOA.

¶3 Therefore, we affirm the trial court’s grant of summary

judgment in favor of defendants, Brooks Towers Residences

Condominium Association, Inc. (the Association) and its individual

board members, on a declaratory judgment claim brought by two

residents, Anthony T. Accetta and Nancy Accetta, under CCIOA.

We also affirm the trial court’s grant of summary judgment in favor

of defendants on the Accettas’ common law claims. Finally, we

1
conclude that defendants are entitled to recover their attorney fees

for this appeal under section 38-33.3-123(1)(c), C.R.S. 2020, and

we remand the case to the trial court to determine the amount of

such fees and award them to defendants.

I. Background

¶4 Through their claims in this case, the Accettas challenge the

allocation of common expenses among units in Brooks Towers, a

high-rise condominium building in downtown Denver.

¶5 Magna Associates (Magna) acquired the building in the 1970s.

At that time, it was a residential apartment building with a handful

of commercial spaces.

¶6 In 1979, Magna recorded a declaration and map submitting

the building to condominium ownership under the Condominium

Ownership Act (COA), section 38-33-101 to -113, C.R.S. 2020. The

1979 declaration named the community Brooks Towers

Condominiums and divided the building into 518 units (514

residential and 4 commercial units). Magna didn’t sell the units at

that time but continued to rent them to tenants. Nor, it seems, did

Magna create “The Brooks Towers Condominiums Association, Inc.”

referenced in the 1979 declaration.

2
¶7 In the early 1990s, Magna had to sell its assets and distribute

its funds, as its formation documents required it to terminate on a

certain date. To facilitate these tasks, Magna transitioned to the

Magna Associates Liquidating Trust (the Trust), which remodeled

the common spaces, converted some spaces into additional units,

and sold all the units to third parties.

¶8 In 1995, before selling the units, the Trust, acting as the

declarant, executed and recorded an “Amended and Restated

Declaration” and an amended map. The 1995 declaration states

that it “shall totally replace and supersede the [1979] declaration.”

Through the 1995 declaration, the Trust changed the community’s

name to Brooks Tower Residences, increased the number of units to

854 (526 residential, 33 commercial, and 295 parking units), and

designated the Association (which had been created in 1994 under

the new name, Brooks Tower Residences Condominium Association,

Inc.) to manage the community.1

1Notwithstanding that the Association’s name is Brooks Tower
Residences Condominium Association, Inc., it was sued and has
participated in this case under the name Brooks Towers Residences
Condominium Association, Inc. (with an “s” at the end of Tower).

3
¶9 The 1995 declaration makes several references to CCIOA,

which had become effective on July 1, 1992. See Ch. 283, sec. 2,

1991 Colo. Sess. Laws 1757. For example, it

 provides that the “Declarant does hereby submit the Project

to condominium ownership pursuant to [CCIOA]”;

 states that “[t]he provisions of this Declaration shall be in

addition and supplemental to [CCIOA] and to all other

provisions of law”; and

 includes a section providing information about the property

“in compliance with certain of the requirements set forth in

Section 205 of [CCIOA].”

¶ 10 An attachment to the 1995 declaration specifies the

allocations of undivided interests for each unit. The declaration

explains that those percentages are based on the units’ relative

values, as determined by the Trust as of the date of the declaration.

The declaration also obligates unit owners to pay assessments,

imposed by the Association against each unit in accordance with

the unit’s ownership percentage, to meet the common expenses.

¶ 11 The Accettas purchased Unit 3D in 2005. Under the 1995

declaration, Unit 3D’s percentage of ownership in the common

4
elements was less than 0.3 percent — less than some units but

significantly higher than many others. As a result, the Accettas pay

higher monthly dues and are assessed higher amounts for large

projects than many other unit owners.

¶ 12 The special warranty deed that conveyed Unit 3D to the

Accettas states that the unit is subject to the 1995 declaration. The

Accettas maintain, however, that they didn’t read the declaration

before purchasing the unit, weren’t provided a copy of the list of

percentage interests or any other documentation showing the

allocations for other units, and didn’t learn of the differentials in

unit allocations until several years later.

¶ 13 In 2017, after learning of those differentials, the Accettas filed

this case. They sought a declaration that the 1995 declaration’s

allocation provisions are invalid under three provisions of CCIOA:

(1) section 38-33.3-207(2), C.R.S. 2020, which requires a

declaration to state the formulas used to establish allocations of

interests; (2) section 38-33.3-112(1), C.R.S. 2020, which permits a

court to refuse to enforce an unconscionable clause in a contract

relating to a common interest community; and (3) section

38-33.3-113, C.R.S. 2020, which imposes an obligation of good

5
faith in the performance of every contract or duty governed by

CCIOA. They also brought common law claims for breach of

fiduciary duty, conversion, unjust enrichment, and negligence.

¶ 14 Earlier in the case, the trial court ordered that all the other

unit owners were indispensable parties who had to be joined in the

case. The supreme court reviewed that order under C.A.R. 21 and

concluded that joinder was not necessary. Accetta v. Brooks Towers

Residences Condo. Ass’n, 2019 CO 11, ¶ 3.2

¶ 15 Later, on cross-motions by the parties, the trial court issued

three orders resolving the Accettas’ claims.

¶ 16 In the first order, the court issued a legal determination under

C.R.C.P. 56(h) that Brooks Towers is not governed by the entirety of

CCIOA. The court reasoned that the community was formed in

1979 under COA, there was never any election for treatment as a

post-CCIOA community through the procedures outlined in section

38-33.3-118, and such an election couldn’t be effectuated by other

means, including by adopting and recording a new declaration.

2 At the time of the supreme court’s review of the joinder issue,
Mr. Accetta was the only plaintiff in the case. Ms. Accetta was later
joined as an additional plaintiff.

6
¶ 17 In the second order, the court granted in part the individual

defendants’ summary judgment motion, concluding that the

Accettas could pursue their CCIOA declaratory judgment claim but

not their common law claims against the individual defendants. As

to the common law claims, the court reasoned that, under various

provisions of law and the Association’s governing documents, “none

of the individually-named Defendants can be held liable in tort for

any of the damage claims asserted against them.”

¶ 18 In the third order, the court granted defendants’ motion for

summary judgment and denied the Accettas’ cross-motion for

summary judgment. The court concluded that the Accettas’ CCIOA

declaratory judgment claim failed as a matter of law because the

community isn’t subject to the entirety of CCIOA or to the specific

CCIOA provisions at issue, and, even if those provisions applied, the

1995 declaration didn’t violate them. The court also concluded that

the Accettas’ common law claims failed as a matter of law because

defendants had no duty to adjust the allocations set by the 1995

declaration and the Accettas were on record notice of those

allocations when they purchased their unit.

7
¶ 19 The Accettas challenge the first and third orders in this appeal

but do not challenge the second order.

II. Analysis

¶ 20 The Accettas contend the trial court erred in three ways: (1) by

concluding that Brooks Towers isn’t governed by CCIOA; (2) by

holding that the 1995 declaration doesn’t violate certain provisions

of CCIOA; and (3) by entering summary judgment in defendants’

favor on the Accettas’ common law claims.

¶ 21 We disagree with the Accettas on the first issue. Because we

conclude that Brooks Towers isn’t subject to the CCIOA provisions

the Accettas claim the 1995 declaration violates, we don’t address

the second issue. We also disagree with the Accettas on the third

issue. Finally, we consider the parties’ competing requests for

appellate attorney fees.

A. Legal Principles and Standard of Review

¶ 22 The trial court issued its two disputed orders under C.R.C.P.

56(h) and (c), respectively.

¶ 23 C.R.C.P. 56(h) allows a court to address issues of law that are

not dispositive of a claim but nonetheless will significantly impact

the way the case proceeds. Coffman v. Williamson, 2015 CO 35,

8
¶ 11. An order is appropriate under the rule “[i]f there is no

genuine issue of any material fact necessary for the determination

of the question of law.” Id. at ¶ 12 (quoting C.R.C.P. 56(h)).

¶ 24 Summary judgment under C.R.C.P. 56(c) is appropriate when

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Ryan Ranch Cmty. Ass’n v.

Kelley, 2016 CO 65, ¶ 23.

¶ 25 We review decisions under both provisions of Rule 56 de novo.

Id.; Coffman, ¶ 12.

¶ 26 We likewise review de novo a trial court’s interpretation of

recorded instruments. Ryan Ranch, ¶ 24. We give the words and

phrases their common meanings and, where an instrument’s

meaning is clear, we enforce it as written. Pulte Home Corp. v.

Countryside Cmty. Ass’n, 2016 CO 64, ¶ 23.

¶ 27 The meaning and effect of statutory provisions are also

questions of law that we review de novo. Ryan Ranch, ¶ 25. When

interpreting a statute, our primary goal is to ascertain and give

effect to the General Assembly’s intent. Lewis v. Taylor, 2016 CO

48, ¶ 20. “In interpreting a statute, we look to ‘the entire statutory

scheme to give consistent, harmonious, and sensible effect to all

9
parts’ and apply ‘words and phrases according to their plain and

ordinary meaning.’’’ Pulte Home Corp., ¶ 24 (quoting Denver Post

Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)). “Where the

statute’s language is clear, we apply it as written.” Id.

B. CCIOA Declaratory Judgment Claim

¶ 28 We first address the issue at the heart of this dispute: whether

Brooks Towers is governed by the provisions of CCIOA the Accettas

claim the 1995 declaration violates. We conclude that it is not. In

doing so, we reject the Accettas’ three arguments for application of

CCIOA: (1) that the 1995 declaration created an entirely new

common interest community; (2) that the 1995 declaration elected

treatment under CCIOA; and (3) that the 1995 declaration

incorporated some of the relevant provisions of CCIOA.3

1. Creation of a New Community Under the 1995 Declaration

¶ 29 We first reject the Accettas’ argument that Brooks Towers isn’t

a pre-existing community that falls outside the scope of much of

3 The Accettas also highlight the fact that in the early stages of this
case, defendants argued that CCIOA applied and barred the
Accettas’ claims. They don’t make any legal argument based on
that fact, however, so we don’t consider it.

10
CCIOA but, instead, became a new community subject to CCIOA

when it adopted a new declaration in 1995.

¶ 30 CCIOA automatically applies in its entirety to common interest

communities “created” in the state after CCIOA’s effective date of

July 1, 1992. § 38-33.3-115, C.R.S. 2020. It generally does not

apply to communities created before its effective date.

§ 38-33.3-117(3), C.R.S. 2020; see also DA Mountain Rentals, LLC v.

Lodge at Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 28.

There are two important exceptions, however. First, under section

38-33.3-117, pre-existing communities are automatically subject to

certain provisions in CCIOA. DA Mountain Rentals, ¶ 28. Second,

under section 38-33.3-118, associations for pre-existing

communities may elect to be governed by CCIOA in its entirety.

DA Mountain Rentals, ¶ 28.

¶ 31 A common interest community is “created” for purposes of

CCIOA by recording a declaration and a plat or map and conveying

the real estate subject to the declaration to the association.

§ 38-33.3-201(1), C.R.S. 2020; see also Pulte Home Corp., ¶¶ 41-44.

By contrast, COA doesn’t set forth any specific requirements for the

11
creation of a common interest community under that statutory

scheme.

¶ 32 Nonetheless, we agree with the trial court that Brooks Towers

was created as a common interest community in 1979. The

question, then, is whether the amendment of the bylaws in 1995

effectively created a “new” common interest community in place of

the earlier one. We conclude that it did not.

¶ 33 In doing so, we reject the Accettas’ argument that the 1995

declaration, by “totally replac[ing] and supersed[ing]” the 1979

declaration, created an entirely new common interest community.

The 1995 declaration may have supplanted the terms of the 1979

declaration, but it didn’t nullify the 1979 declaration as if the

earlier declaration had never existed. Nor did it create a new

common interest community where there wasn’t one before.

¶ 34 Critically, both declarations describe the same real estate.

Under CCIOA, a “common interest community” is “real estate

described in a declaration with respect to which a person, by virtue

of such person’s ownership of a unit, is obligated to pay for real

estate taxes, insurance premiums, maintenance, or improvement of

other real estate described in a declaration.” § 38-33.3-103(8),

12
C.R.S. 2020. And “real estate” is “any leasehold or other estate or

interest in, over, or under land, including structures, fixtures, and

other improvements and interests that, by custom, usage, or law,

pass with a conveyance of land though not described in the contract

of sale or instrument of conveyance.” § 38-33.3-103(25).

¶ 35 Here, the real estate — the property interests in the land upon

which the condominium building sits and in the structures,

fixtures, and other improvements on that land — didn’t

fundamentally change between the 1979 and the 1995 declarations.

Both declarations create a community of common ownership. Both

provide the same legal description of the land. Both pertain to the

same high-rise condominium building. And, while the Trust

renovated portions of the building and created additional units

before recording the 1995 declaration, the structure was largely the

same, as were many of the units within that structure.

¶ 36 It cannot be that any time a common interest community

makes improvements to a building, modifies or adds units or

common areas, amends its declaration, or changes its name, it

automatically becomes a new community under CCIOA. Such a

rule would bring uncertainty into application of CCIOA, contrary to

13
its legislative purposes. See § 38-33.3-102(1)(a), C.R.S. 2020 (“[I]t is

in the best interests of the state and its citizens to establish a clear,

comprehensive, and uniform framework for the creation and

operation of common interest communities.”). It also would disrupt

CCIOA’s specific procedures for election into governance by its

provisions, as discussed in the next section, and for termination of

existing communities. See § 38-33.3-218, C.R.S. 2020.

Accordingly, we decline to adopt such a rule.

2. Election into the Provisions of CCIOA

¶ 37 Next, we reject the Accettas’ argument that, through its

repeated references to CCIOA, the 1995 declaration effectively

elected into treatment under CCIOA.

¶ 38 Section 38-33.3-118 — which, pursuant to section

38-33.3-117(1)(e), applies to pre-existing common interest

communities as to events and circumstances occurring on or after

July 1, 1992 — provides two methods an association for a pre-

existing community may use to elect to be governed by CCIOA in its

entirety. Under the first method,

[i]f there are members or stockholders entitled
to vote thereon, the board of directors may
adopt a resolution recommending that such

14
association accept this article and directing
that the question of acceptance be submitted
to a vote at a meeting of the members or
stockholders entitled to vote thereon, which
may be either an annual or special meeting.
The question shall also be submitted whenever
one-twentieth, or, in the case of an association
with over one thousand members, one-fortieth,
of the members or stockholders entitled to vote
thereon so request. Written notice stating that
the purpose, or one of the purposes, of the
meeting is to consider electing to be treated as
a common interest community organized after
June 30, 1992, and thereby accepting the
provisions of this article, together with a copy
of this article, shall be given to each person
entitled to vote at the meeting within the time
and in the manner provided in the articles of
incorporation, declaration, bylaws, or other
governing documents for such association for
the giving of notice of meetings to members.
Such election to accept the provisions of this
article shall require for adoption at least sixty-
seven percent of the votes that the persons
present at such meeting in person or by proxy
are entitled to cast.

§ 38-33.3-118(1)(a). Alternatively,

[i]f there are no persons entitled to vote
thereon, the election to be treated as a
common interest community under this article
may be made at a meeting of the board of
directors pursuant to a majority vote of the
directors in office.

§ 38-33.3-118(1)(b).

15
¶ 39 Under either method, certain officers of the association must

execute and record a statement of election setting forth the name of

the common interest community and association, the fact that the

association has elected to accept the provisions of CCIOA, and

information concerning the association’s compliance with one of the

two methods for electing into CCIOA. § 38-33.3-118(2)-(3). Only

when that statement of election is recorded does the election

become effective. § 38-33.3-118(4).

¶ 40 The meaning of these provisions is clear. The General

Assembly has established specific procedures that associations

must follow if they want to elect treatment under CCIOA — and only

through those procedures can such an election be effectuated.

¶ 41 Notably, although the General Assembly modeled much of

CCIOA on the Uniform Common Interest Ownership Act (Unif. L.

Comm’n 2014) (UCIOA), see Pulte Home Corp., ¶ 43 n.5, section

38-33.3-118 is unique to Colorado. It was modeled after statutory

sections setting forth the procedures for pre-existing corporate

entities to elect into the provisions of the Colorado Revised

Nonprofit Corporation Act. See Staff Summary of Hearing on H.B.

91-1292 before the H. Comm. on Judiciary, 58th Gen. Assemb., 1st

16
Reg. Sess. (Feb. 12, 1991), attach. A (Memorandum from James L.

Winokur on Proposed Colorado Common Interest Ownership Act:

Background & Summary of Basic Provisions 39-40 (Feb. 1990)); see

also §§ 7-137-201 to -204, C.R.S. 2020.

¶ 42 This suggests that the General Assembly wanted to tailor

CCIOA to give associations for pre-existing common interest

communities an option to elect treatment under CCIOA. But the

specificity of Colorado’s unique provisions suggests that the General

Assembly also wanted to be deliberate about exactly how such an

election could be made and what kind of notice would need to be

recorded to advise others of the election.

¶ 43 We therefore conclude that section 38-33.3-118 provides the

exclusive mechanism by which an association for a pre-existing

common interest community can elect to be governed by the

entirety of CCIOA. This interpretation comports with the plain

language of this provision. It also comports with the general

language in CCIOA stating that, “[e]xcept as expressly provided in

this article, provisions of this article may not be varied by

agreement, and rights conferred by this article may not be waived.”

§ 38-33.3-104, C.R.S. 2020.

17
¶ 44 Our decision is in line with recent supreme court cases strictly

enforcing other procedural requirements set forth in CCIOA. For

instance, in Ryan Ranch, ¶¶ 33, 51, the court held, based in part on

section 38-33.3-104, that an association didn’t annex property into

a common interest community when it didn’t comply with the

procedures specified in CCIOA for doing so. And in Perfect Place,

LLC v. Semler, 2018 CO 74, ¶ 48, the court held that the owner of a

garage unit didn’t subdivide that unit when he didn’t comply with

the procedures specified in CCIOA for doing so. While the supreme

court hasn’t expressly held that CCIOA provisions always require

strict compliance, its decisions certainly suggest that, at the least,

substantial compliance with a CCIOA-established procedure is

necessary. See, e.g., id. And adopting a declaration that vaguely

refers to CCIOA but doesn’t expressly elect treatment under CCIOA,

without following the specified procedures for approving and filing a

statement of election, doesn’t comply with the statutory process “in

any meaningful sense.” Id.

¶ 45 Our decision also aligns with CCIOA’s statutory purpose “to

establish a clear, comprehensive, and uniform framework for the

creation and operation of common interest communities.”

18
§ 38-33.3-102(1)(a). This purpose is best served by applying the

statute as written — that is, to require that associations for pre-

existing communities follow the specified procedure if they wish to

be governed by the entirety of CCIOA. That way, members and

stockholders can be ensured notice and an opportunity to vote on

the issue; potential buyers and other interested parties can review

the recordings relating to the property to confirm which statutory

regime applies; and associations can be assured that they won’t

inadvertently subject themselves to CCIOA any time they amend

their declarations, without carefully weighing the consequences of

such a change. See generally William C. Jensen & Cynthia L.

McNeill, Colorado Common Interest Ownership Act — How It Is

Doing, 25 Colo. Law. 17, 20 (Nov. 1996) (“[T]he decision to elect into

CCIOA or to remain subject to COA requires close examination of

the rights and liabilities contained in the declaration, focusing on

how an election into CCIOA will either enhance or destroy the rights

contained therein.”).

¶ 46 We share the trial court’s concerns that the protections and

predictability provided by section 38-33.3-118 would “evaporate” if

courts “were allowed to peruse amended declarations for evidence

19
that the board of directors of a pre-existing condominium intended

to become subject to the CCIOA even though they never proposed or

adopted a formal resolution to do so.”

¶ 47 We also note that allowing associations for pre-existing

communities to elect into CCIOA simply by filing an amended

declaration could enable some associations to avoid the onerous

requirements set forth in CCIOA for making such an election.

Where members or stockholders are entitled to vote, for a proposed

election into CCIOA to pass, section 38-33.3-118(1)(a) requires an

affirmative vote by at least sixty-seven percent of those persons who

cast a vote. Yet a declaration might require far fewer votes to

approve declaration amendments. Indeed, COA doesn’t dictate the

requirements for amendment of a declaration. See §§ 38-33-105.5,

38-33-106, C.R.S. 2020. And a provision of CCIOA, which applies

to pre-existing communities for declaration amendments made on

or after January 1, 2006, allows for amendments with as little as a

simple majority of the votes in the association — or less if all units

are restricted to nonresidential use. § 38-33.3-217(1)(a)(I), C.R.S.

2020; see also § 38-33.3-117(1.5)(d).

20
¶ 48 We reject the Accettas’ argument that dicta in B.B. & C.

Partnership v. Edelweiss Condominium Ass’n, 218 P.3d 310 (Colo.

2009), suggests the amendment of a declaration can automatically

trigger application of the entirety of CCIOA. The supreme court’s

opinion in that case merely notes that COA controlled the issues in

the case “because the Declaration creating [the community] was

recorded in 1970 and the relevant events transpired before the

2003 Amended Declaration was recorded.” Id. at 315. The opinion

doesn’t cite section 38-33.3-118 and doesn’t consider the process

the association would need to follow to elect treatment under

CCIOA. See id. Thus, it has no bearing on this issue.

¶ 49 Finally, we reject the Accettas’ argument that the statutory

requirements don’t apply in this case because the association

contemplated in the 1979 declaration was never formed and, in the

absence of any voting members or board of directors, there would’ve

been no way to accomplish the procedures in section 38-33.3-118.

Had Magna wished for the common interest community to become

subject to the entirety of CCIOA, it could’ve formed the association

and board of directors and then proceeded to follow the section

38-33.3-118 procedures. It didn’t do so.

21
¶ 50 For all these reasons, we conclude that, irrespective of the

1995 declaration’s repeated references to CCIOA, the recording of

that declaration did not elect treatment under CCIOA as

contemplated by section 38-33.3-118.

3. Opting into Portions of CCIOA

¶ 51 We also reject the Accettas’ argument that the 1995

declaration incorporated one of the CCIOA requirements they claim

has been violated. Specifically, they argue that the declaration

incorporated the requirements of section 38-33.3-205, C.R.S. 2020,

which, in turn, incorporates the requirements of section

38-33.3-207. We disagree for two reasons.

¶ 52 First, we disagree with the Accettas’ premise that section

38-33.3-120, C.R.S. 2020, provides a means for associations for

pre-existing communities to adopt all or large parts of CCIOA

without undergoing the procedures outlined in section 38-33.3-118.

¶ 53 Section 38-33.3-120(1) provides,

[i]n the case of amendments to the declaration,
bylaws, or plats and maps of any common
interest community created within this state
before July 1, 1992, which has not elected
treatment under this article pursuant
to section 38-33.3-118:

22
(a) If the substantive result accomplished by
the amendment was permitted by law in effect
prior to July 1, 1992, the amendment may be
made either in accordance with that law, in
which case that law applies to that
amendment, or it may be made under this
article; and

(b) If the substantive result accomplished by
the amendment is permitted by this article,
and was not permitted by law in effect prior to
July 1, 1992, the amendment may be made
under this article.

See also § 38-33.3-117(1)(f) (applying section 38-33.3-120 to

pre-existing communities for events and circumstances occurring

on or after July 1, 1992).

¶ 54 This provision, like the UCIOA provision on which it is based,

“does not permit a pre-existing common interest community to elect

to come entirely within the provisions of the Act, disregarding old

law.” UCIOA § 1-206 cmt. 6; see also Arrabelle at Vail Square

Residential Condo. Ass’n v. Arrabelle at Vail Square LLC, 2016 COA

123, ¶ 15 (“CCIOA is patterned after the [UCIOA], and ‘we accept

the intent of the drafters of a uniform act as the General Assembly’s

intent when it adopts a uniform act.’” (quoting Yacht Club II

Homeowners Ass’n v. A.C. Excavating, 94 P.3d 1177, 1180 (Colo.

23
App. 2003))). Nor does it permit an association for a pre-existing

community to elect to come within some portions of CCIOA.

¶ 55 Instead, this provision enables associations for pre-existing

communities to amend their declarations to add provisions that

would’ve been prohibited by pre-existing law but are permitted

under CCIOA. See, e.g., DA Mountain Rentals, ¶¶ 29-31; Giguere v.

SJS Fam. Enters., Ltd., 155 P.3d 462, 467-69 (Colo. App. 2006);

UCIOA § 1-204 cmt. 2 (“[U]nder Section 1-206, owners of ‘old’

common interest communities may amend any provisions of their

declaration or bylaws, even if the amendment would not be

permitted by ‘old’ law, so long as (a) the amendment is adopted in

accordance with the procedure required by ‘old’ law and the existing

declaration and bylaws, and (b) the substance of the amendment

does not violate this Act.”); UCIOA § 1-206 cmt. 1 (“This section . . .

provides a straightforward mechanism by which the documents of

pre-Act common interest communities may be amended to take

advantage of desirable provisions of the Act.”).

¶ 56 Second, even if an association could adopt portions of CCIOA

through a declaration, the 1995 declaration doesn’t evince any

intent to incorporate the requirements of section 38-33.3-205 or,

24
through it, section 38-33.3-207. As the trial court noted, the

declaration refers to section 38-33.3-205 only one time; that one

“casual reference” (which provides that, “[i]n compliance with

certain of the requirements set forth in Section 205 of [CCIOA],

Declarant hereby states as follows,” before addressing various

topics section 38-33.3-205 requires to be in all declarations) doesn’t

signify an intent to be bound by section 38-33.3-205 where CCIOA

didn’t otherwise apply; and the declaration makes no reference

whatsoever to section 38-33.3-207, the section the declaration

supposedly violates.

4. Compliance With CCIOA

¶ 57 We have concluded that Brooks Towers isn’t governed by

CCIOA, either generally or as to the specific provisions at issue.

And the provisions of CCIOA that the Accettas claim to have been

violated — sections 38-33.3-112, 38-33.3-113, and 38-33.3-207 —

aren’t ones that section 38-33.3-117 automatically applies to

pre-existing communities like Brooks Towers. Therefore, the 1995

declaration isn’t subject to these provisions, and we don’t consider

Brooks Towers’ compliance with them.

25
C. Common Law Claims

¶ 58 We next address the Accettas’ argument that the trial court

erred by entering summary judgment in defendants’ favor on their

remaining claims for breach of fiduciary duty, conversion, unjust

enrichment, and negligence. They assert that these claims survive

even if CCIOA doesn’t apply. We disagree.

¶ 59 The Accettas concede that if their CCIOA declaratory judgment

claim fails, their unjust enrichment claim fails as well. We

therefore address only their other three common law claims. We

also limit our consideration to the claims asserted against the

Association, because the Accettas don’t challenge the dismissal of

the common law claims against the individual defendants.

¶ 60 As alleged in the complaint, the breach of fiduciary duty,

conversion, and negligence claims are all based on imposition of

excessive fees against the Accettas’ unit and failure to disclose the

relative amount of the fees as compared to other units.

¶ 61 Yet the Accettas haven’t established the excessiveness of the

fees under any applicable provision of CCIOA, they haven’t argued

excessiveness under COA, and they haven’t articulated any other

legal basis for concluding that the fees were excessive or that the

26
Association had an obligation to ignore the allocations in the 1995

declaration in assessing fees. Indeed, the declaration obligates the

Association to assess fees in accordance with the allocations

adopted as part of that declaration.

¶ 62 Additionally, the Accettas’ claims regarding disclosure of the

fee differentials among units fail because the recorded declaration

sets out the allocations for each unit. Thus, the Accettas were on

constructive notice of the fee allocations for all units as far back as

1995. See Chateaux Condos. v. Daniels, 754 P.2d 425, 426-27

(Colo. App. 1988) (a condominium association’s recorded

declaration put a unit owner on constructive notice that he was

liable for unpaid common expenses assessed against his unit).

¶ 63 The Accettas argue that improper resolutions and declaration

amendments (unrelated to the fee allocations) also support their

claims. But, while the complaint briefly alludes to those actions, it

doesn’t allege them as a basis for any of the common law claims.

Therefore, we don’t consider them. See Wibby v. Boulder Cnty. Bd.

of Cnty. Comm’rs, 2016 COA 104, ¶ 20 (declining to consider an

argument that wasn’t alleged in the complaint).

27
D. Attorney Fees

¶ 64 Finally, we consider the parties’ competing requests for

attorney fees for this appeal. We deny the Accettas’ request

because they are not the prevailing parties. However, we grant

defendants’ request.

¶ 65 Section 38-33.3-123(1)(c) — which, under section

38-33.3-117(1)(g), applies to pre-existing common interest

communities for events and circumstances occurring on or after

July 1, 1992 — provides that “[i]n any civil action to enforce or

defend the provisions of this article or of the declaration, bylaws,

articles, or rules and regulations, the court shall award reasonable

attorney fees, costs, and costs of collection to the prevailing party.”

¶ 66 We conclude that section 38-33.3-123(1)(c) requires an award

of appellate attorney fees to defendants as the prevailing parties in

this civil action to enforce the provisions of CCIOA. All of the

Accettas’ claims, including the declaratory judgment claim and the

common law claims, were premised on violations of CCIOA. And

while we ultimately rejected those claims based on our conclusion

that Brooks Towers isn’t governed by CCIOA, section

38-33.3-123(1)(c) still applies because the Accettas brought the

28
action to enforce CCIOA’s provisions. Accordingly, an award of fees

under that section is required. See Cody Park Prop. Owners’ Ass’n

v. Harder, 251 P.3d 1, 8 (Colo. App. 2009); Giguere, 155 P.3d at

472.

¶ 67 Pursuant to C.A.R. 39.1, we exercise our discretion to remand

the case to the trial court to determine the amount of reasonable

appellate fees to be awarded to defendants.

III. Conclusion

¶ 68 The judgment is affirmed, and the case is remanded to the

trial court to determine the amount of defendants’ reasonable

appellate attorney fees and award such fees to defendants.

JUDGE FURMAN and JUDGE TOW concur.

29