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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33714
Experience:  15 years real estate, Realtor. Landlord 26 years
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We live in Colorado in a gated community which has 13 homes

Customer Question

We live in Colorado in a gated community which has 13 homes in it. The developers of the property own 3 of the homes and live in them. When they began selling lots in 2001 they had a declarative drawn up. Of course it favors them in all things. We were the first ones to buy a lot. The developers presented themselves as honest, Christian people and as wanting to create a friendly community. We read the declarant and had a lawyer read it, but didn't pay much attention as these folks seemed honest and it seemed straightforward. They have since sold all the remaining lots and everyone felt as we did. Until last month when we discovered that one of the two lakes on the property was their private lake. Until now they had always encouraged us to use the lake where their 3 homes sat. There is also one where some of our homes are. We were shocked to find that lake was their private property and so were every one of the other homeowners, who had been led to believe otherwise. On our declarant, the map of the property is blank. We probably just let that go at the time. We feel they wanted all of us to think it was part of the general land and not private. No one knew because they acted like it was general land. The reason this has come up now is that we accidentally found out that they have been secretly planning to sell 2 more lots along that lake (their private property). They have always said there are only to be 13 lots total. They have told everyone who bought here that. The declarant says that but they are now trying to get around it. In short we feel they have deceived all of us in many ways and now they are acting like because their lake and the adjoining property are private that they can do what they want. They don't think they have to follow the homeowner's rules. We have let them run the homeowner's association until now because we thought we could trust them. But with all this happening, we are feeling taken advantage of. We want to know 1) there have been many laws regarding homeowners associations and developers put into place since 2001. Do they have to abide by them? In other words, does the old declarant hold or does it need to be updated to reflect today's state rules? and 2) when they sold the various lots, they said a lot of things and promised things that simply weren't true. Do they have to be held to the same standards are real estate people are now? and 3) they own private property (homes and a lake) which sits inside a homeowner-run community. Don't they have to abide by the rules of the community? For instance, if we decide we don't want something on that lake, don't they have to abide by that even though it is a private lake? Thank you.
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Barrister replied 4 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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I am sorry to hear that you are encountering this problem with the developers..

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1) there have been many laws regarding homeowners associations and developers put into place since 2001. Do they have to abide by them? In other words, does the old declarant hold or does it need to be updated to reflect today's state rules?

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I hate to have to be the bearer of bad news, but it is part of the job... When you and everyone else purchased a lot in the development, you agreed to be bound by whatever declarations, covenants, conditions and restrictions were of record at that time. So the developer is not obligated to update them unless the declaration has some provision that mandates it. They can't violate state law, as that trumps any declaration, but they don't have to amend it to expand any homeowner rights..

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2) when they sold the various lots, they said a lot of things and promised things that simply weren't true. Do they have to be held to the same standards are real estate people are now?

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Unfortunately, the rule in real estate contracts is that if it isn't in writing, it doesn't count. So any verbal promises or assertions aren't enforceable unless they were reduced to writing on the contract. The fact that they got everyone to trust them without anyone asking them to put it in writing shows that they are unethical and morally questionable, but it isn't illegal for them to do so. A buyer has to ask questions and demand answers in writing and can't just assume that things are a certain way. Assuming is a dangerous thing to do in a real estate situation and it would have been the prospective buyer's duty to thoroughly investigate what came with the development as a common area and what was excluded. It could have been something as simple as checking the current development plat to see who owned the lake.

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3) they own private property (homes and a lake) which sits inside a homeowner-run community. Don't they have to abide by the rules of the community? For instance, if we decide we don't want something on that lake, don't they have to abide by that even though it is a private lake?

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If their lots and property isn't specifically part of the development, then they are not legally bound by any of the rules that bind everyone else. That is one of the perks of being a developer....you can exempt your lots and then put the restrictions on everyone else's lots before you start selling and it makes your lots more valuable later because they aren't subject to the restrictions.

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If this is their private lake and land, then they can literally do anything that they want to with it as long as they comply with any local zoning ordinances and don't violate any local or state laws.

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I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

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thanks

Barrister

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