Real Estate

Restrictive covenants recorded in the public records limit the use and occupancy of real property. A restriction can take many forms.  For example, a covenant  might limit building sizes, building types and architectural styles.  Other covenants might actually mandate a minimum home size, the minimum number or location of trees or the minimum square footage of lawn required on a lot. A covenant might prohibit uses allowed on the property. Many residential developments have covenants prohibiting commercial or business use of any kind.  In fact, during the past 50 years, such restrictions have become very common and highly detailed. In fact, such covenants now affect almost all residential developments and even agricultural lands in the State of Colorado.

Restrictive Covenants can sometimes enhance the value of real estate, but they sometimes may diminish value.  Furthermore, such restrictions can lead to misunderstandings and disputes among affected property owners and Home Owner Associations.

In Colorado, common law and various statutes strictly regulate the creation and enforcement of restrictive covenants. For example, the Common Interest Ownership Act mandates specific procedures that an HOA must follow when attempting to enforce covenants. The applicable laws are in some cases are quite extensive and detailed.  Misinterpretation of these rules or  simple ignorance about their existence often leads to difficulties among affected owners.

Weaver & Fitzhugh, PC advises numerous Homeowner Associations and individual homeowners regarding restrictive covenants.  We can help you determine whether certain covenants apply to your property, and, if so, how they affect your legal rights.  We can also help individual land owners or HOA’s create, modify or revoke covenants.  If you manage or sit on an HOA governing board, we can help you develop appropriate covenants that benefit the entire community.  With our assistance, individual owners can decide how best to enjoy their real property without creating covenant issues for themselves.  If you need assistance with creation, modification, compliance or enforcement of restrictive covenants, please to call us for detailed advice about your situation.

The law of Adverse Possession often leads to Boundary Disputes in rural Colorado. Such disputes are common and often far more complex than most property owners may imagine.  Through Adverse Possession, a person may, under certain circumstances and after passage of sufficient time, acquire legal title to her neighbor’s property, without every receiving a deed. Commonly referred to as “Squatters’ Rights,” this legal doctrine can apply in a number of circumstances. It most often arises when someone occupies – continuously for at least 18 years – property she does not own. To acquire ownership by Adverse Possession, the claimant must make exclusive use of the property under circumstances that would make any reasonable owner aware that the occupant asserts ownership of the land to the exclusion of the record owner.   The occupant under Adverse Possession must prove continuous, obvious, exclusive possession of the property and use of a character  clearly hostile to the interest of the true owner.  Claims based on Adverse Possession often arise when property changes hands and the new owner discovers that a fence, previously presumed  to have been the boundary, doesn’t actually lie on the established, legal boundary.  Resolving such disputes usually requires a deep dive into the history of the fence, the boundary and the relationship between the neighboring property owners over a long period of time.  Please call Weaver & Fitzhugh, PC if you have concerns or need more information about Adverse Possession or related issues.

Even in our difficult  economy, inability of a homeowner to make timely payments on mortgage or trust deed debt does not always lead to foreclosure.  A deed in lieu of foreclosure may avoid the foreclosure process for both lender and borrower.  With a deed in lieu of foreclosure, the property owner deeds the property back to the lender   in exchange for release of the debt. The lender typically promises not to initiate foreclosure proceedings and to terminate any existing foreclosure proceedings.  The lender may also  forgive any loan deficiency (the amount of the loan  not fully recovered by the lender upon subsequent resale).

In today’s real estate market, many borrowers may offer seller-carry lenders a deed in lieu of foreclosure.  Whether accepting the deed makes sense for the lender depends on many factors, including: value of the property, buyer/borrower’s over-all financial situation, amount remaining on the mortgage/trust deed, and whether the buyer/borrower has further encumbered the property since purchasing from the seller/lender.  If the property has no other encumbrances and substantial market value in excess of the amount outstanding on the note carried by the seller, a deed in lieu may be a good way for a lender to resolve the situation and avoid the cost of a foreclosure.  On the other hand, if the value is questionable, or if the buyer has created junior encumbrances, a deed in lieu may be a mistake for the lender.

For more detailed information about deeds in lieu of foreclosure and other real estate law issues, call or visit our office today.