Real Estate Law

Have real estate law questions? Ask a real estate lawyer.

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

My question is: what is the time bar to stop prohibited use…

My question is: what is...
My question is: what is the time bar to stop prohibited use on real estate in Colorado.
This is my second attempt to get an answer to my question on statute of limitations in Colorado. I am now posting the question under a different email address. Perhaps I will be able to respond this time. Note that I want the expert to provide me with an authoritative reference (and not merely say "3 years", or "1 year").
Seattle Scott has replied once, but I am not satisfied with the answer.
Here is the question: a parcel of land with many lots is covered by covenants. The covenants prohibit Use X. One Lot Owner engages in Use X. The question is: how long to bring a time action to stop Usage X by Lot Owner.? Seattle Scott referred me to CO statute which has a one year time bar. That time bar deals with situation where there is a BUILDING violation. There are a number of Colorado cases which state that where the 1-year time bar applies (to the BUILDING violation), then you cannot use the covenants to get around the 1 year rule (i.e., you cannot say "since covenants apply, the time bar should be extended beyond 1 year"). I am still waiting for a clear answer as to the statutory time limit where there is ONLY a usage violation, without any building violation. Please only reply if you know what the answer is for usage violation (and can support it with authority). You can also reply if you have authority which states that in Colorado, for the purposes of time bars, usage of land is equal to a building on land.
Show More
Show Less
Ask Your Own Real Estate Law Question
Customer reply replied 2 years ago
Please be advised I will pay quite a bit more than $36 for a fully comprehensive answer.
Answered in 15 minutes by:
2/1/2016
Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 48,904
Experience: Texas Attorney for 30 years dealing in real estate
Verified

Hi and welcome back to JA. Ray here to help you tonight.

There are several statutes of limitation because there are alternate causes of action you can plead here concerning the covenants.Your lawyer would look for some that are longer than a year here, there aer several that this might fall under that are three years.

Read this case it shows what I am talking about..

http://law.justia.com/cases/colorado/supreme-court/1962/19608.html

Ask Your Own Real Estate Law Question

Again you want to plead alternate causes and seek at least some that are beyond the SOL

http://tslawpc.com/wp-content/uploads/2010/06/statute-chart.pdf

Ask Your Own Real Estate Law Question

Creative lawyer can claim discovery rule or tolling.

The Discovery Rule

Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner's embezzlement might not be noticed for years due to the issuance of false statements of account.

So again there may be several constructive ways to bring a civil suit claiming alternate causes here not beyond the SOL or that it should be tolled or discovery rule applies.

Ask Your Own Real Estate Law Question

I was still providing you additional reference as you requested.I am so sorry you gave me a negative rating.Are you wanting follow up here, please just ask.

Ask Your Own Real Estate Law Question
Customer reply replied 2 years ago
I am not satisfied with the answer. Let us say that the ONLY violation is a usage violation. What is the Statue of Limitation for the usage, violation, ignoring additional causes of action which might apply to Lot Owner.

If it is a building issue here..

Actions to enforce the terms

of a building restriction on

real property

One year

C.R.S. 38-41-119 (2009)

Begins at the date of violation

for which the action is sought

Actions to compel the

removal of any building or

improvement on land due to

violation of building

restrictions

One year

C.R.S. 38-41-119 (2009)

Begins at the date of violation

for which the action is sought

Ask Your Own Real Estate Law Question

You might alternatively plead that the law does not cover this and the two year sol should apply here..

Actions for which there are

no set statutes of limitation

Two years

C.R.S. 13-80-102(i) (2009

Ask Your Own Real Estate Law Question

Again no lawyer only pleads one cause of action if they know it has been more than a year they plead alternate causes.

Ask Your Own Real Estate Law Question

Here are examples of cases against HOAs alternate pleadings and causes of action.

http://www.hindmansanchez.com/resources/article/homeowner-suits-against-community-associations/

You depend on your lawyer to plead and prove something that is not beyond the SOLs for Colorado here.They have to be creative in their claims to try to help you recover.

Ask Your Own Real Estate Law Question

And the discovery rule/tolling can be argued for the ones that are beyond time of the SOL for that cause of action.Maybe it could not have been reasonably discovered or should be tolled here.

Ask Your Own Real Estate Law Question

Another example of a case with alternate causes of action.

https://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/09CA1021.pdf

Usually the lawyer will use the shotgun method to plead alternatively without waiving the foregoing and add several causes of action hoping he can make at least some of them stick and make it hard to prevail on the SOL on each and every one.

This is generally complicated litigation to defend and often you overwhelm the other side here and settlement occurs.

Ask Your Own Real Estate Law Question

Thanks again let me know if you have more follow up.I appreciate the chance to try and help you tonight.

Ask Your Own Real Estate Law Question
Customer reply replied 2 years ago
Dear Ray
Please provide reference (e.g., case law) stating whether a usage violation is specifically covered by SOL, or whether it is one which is not specifically covered by a set statute of limitation. If you can't please release the answer to others. Sorry, I had to give you a 2-star rating because the instruction says "When finished, you must rate at the top to credit the Expert." I do not wish to give credit as the system may then assume that the question was satisfactorily answered. Please release the question to other experts. I will rectify the rating to more positive (if possible) once I receive a comprehensive answer from someone.

I am going to opt out here.As I have indicated to you there are no such cases.They all have multiple causes of action and some are going to be within the SOL

Ask Your Own Real Estate Law Question
Brent Blanchard
Category: Real Estate Law
Satisfied Customers: 1,975
Experience: Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
Verified

Since no one has stepped in, I will try to give this a shot.

1. Implied in some of the answers above is the typically aggravating attorney answer of "It depends." You have been told that IF the violation of land use restriction(s) is construction, there is a 1-year statute of limitations. The "discovery rule" is unlikely to apply if that happens because the building is right there in plain sight. There could be some way that a violation could be "fraudulently concealed" by the offender, but nothing comes to mind offhand. But it sounds like that is not the "use X" that you are really asking about.

2. Also implied in the answers above is the "it depends" on what theory of recovery is in the lawsuit. There is a valid point that IF the theory of recovery is not explicitly set out in the Colorado statutes, the default, catch-all statute of limitations is 2 years. That's not long from several perspectives, but it is what it is.

3. Missing from the above answers is the question of what the restrictive covenant documents SAY. Many CC&Rs (which we cannot tell if there are any from your question as posed) for example have "non-waiver" clauses which prevent earlier failures to enforce restrictions from being an obstacle to deciding to start enforcing them later. Not sure if I have seen it, but being similar to contracts, CC&Rs could conceivably have their own statute of limitations--longer and possibly shorter. Courts are very reluctant to alter what people agreed to. (First time I saw that it was a bank depositor agreement which shortened the SoLimitations to only 1 year if the bank messed up in any way...good for them, bad for the folks victimized.)

4. If a prohibited land use is somehow behind closed doors or otherwise concealed from the neighbors, THEN the discovery rule would most likely apply. Two years catch-all from the date of discovery, OR (and this can kill a case) the date when it "could have been" discovered by the "exercise of reasonable diligence." So back to the bank example, not bothering to read your monthly statements is not reasonable diligence, so the contractual 1-year would start the minute the statement lands in your mailbox or inbox. I hope these legal principles help you understand why fraudulent concealment of wrongdoing can make the discovery rule operative long after the SoLimitations would have expired.

Finally, no one has been able to find a Colorado statute of limitations regarding land use violations other than the one already described above. The search would be helped greatly if the restriction were described, and the violating land use were also described.

Thank you.

Ask Your Own Real Estate Law Question
Customer reply replied 2 years ago
Dear Brent
Thank you for taking the time for answering me, and for correctly identifying why I found the previous answer so annoying. In my question I stress that there is no Building violation, and that I want a clear reference to authority, yet the answer again refers me to the 1-year building statute of limitation, without any authority. While you have not referred me to authority either, you correctly identified that there is no case confirming a time bar on usage.Let's say the covenants say "thy shall not raise pigs on thy land". I proceed to raise pigs, for everyone to see, hear, and smell. You write that there is no statute of limitations in Colorado re usage violations. Since asking this question, I have been referred to a 1984 case which makes things worse. Even if the statute of limitations were only 2 days, one would never be able to rely on the statute of limitations! The usage violation is continuous. Every day of usage renews the right to action, and sets the clock back to zero : http://law.justia.com/cases/colorado/court-of-appeals/1984/81ca0400-0.html Barker v. Jeremiasen 676 P.2d 1259 (1984).But that very same case refers to an alternate defence (which, in that case, was not available) namely "the affirmative defenses of waiver and estoppel" to which one can add the word "laches" (no idea if laches is an additional defence, or a synonymous word to describe the same defence). So my question is now: how long can I continue to raise pigs for all to see, hear and smell, and then be able to continue doing so without any party being able to stop me because I will benefit from waiver/estoppel/leaches defence. What additional conditions must be satisfied for me to apply the defence? As always, to get full credit and a generous tip, please provide a reference (or two) to back up any assertion you make.
Many thanks.

Thank you very much for the clarification.

So you can know and read it yourself, some of Colorado's statutes of limitation are here: http://www.lpdirect.net/casb/crs/13-80-101.html

This is a pretty good article explaining how they work: http://research.lawyers.com/colorado/colorado-statutes-of-limitations.html

It also appears that my discussion of what might be called "hidden" land use violations helped focus the question quite a bit. From your example, the defenses of waiver and estoppel would not be available if the land use restrictions have a "no waiver" clause like what I described earlier. Laches can be a hard defense, because the burden of proof is on the defendant to show all of its elements: (1) full knowledge of the facts; (2) unreasonable delay in the assertion of available remedy; and (3) intervening reliance by and prejudice to another.” City of Thornton v. Bijou Irr. Co., 926 P.2d 1, 73 (Colo. 1996) (internal quotations omitted).

“The essential element of laches is unconscionable delay in enforcing a right under the circumstances, usually involving a prejudice to the one against whom the claim is asserted.”4 Loveland Camp No. 83 v. Woodmen Bldg & Benevolent Ass’n, 116 P.2d 195, 199 (Colo. 1941); see also Calvat v. Juhan, 206 P.2d 600, 604 (Colo. 1949); Robbins v. People, 107 P.3d 384, 388 (Colo. 2005).

Now, in the Hickerson v. Vessels case decided by the Co Supreme Court January of 2014, the ruling rejected an appeals court ruling that Laches is not a viable defense in a *debt collection case* if the lawsuit is filed within the statute of limitations. They refused to accept a separation of powers analysis on that, saying that the the Laches defense really can shorten the SoL, specifically for debt collections on the original, OR a re-started SoL (any later partial payment = a new promise to pay the debt, so the SoL clock starts running again.)

In general, the longer the delay, the more likely a waiver, estoppel, or laches defense will work. Same for the more the defendant has relied on the "enforcer" not bothering to enforce their rights.

These principles should apply even for "continuing violation" situations like nuisance actions--but specifically for nuisance, I don't think I have ever heard of those defenses working. Just hasn't come up.

Thank you.

Brent Blanchard
Category: Real Estate Law
Satisfied Customers: 1,975
Experience: Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
Verified
Brent Blanchard and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a real estate lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask Brent Blanchard Your Own Question
Brent Blanchard
Brent Blanchard
Brent Blanchard, Lawyer
Category: Real Estate Law
Satisfied Customers: 1,975
1,975 Satisfied Customers
Experience: Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents

Brent Blanchard is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Barrister

Barrister

Lawyer

12,142 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

8,377 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

48,904 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,208 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,998 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

P. Simmons

P. Simmons

Lawyer

3,572 satisfied customers

12+ yrs. of experience including real estate law.

< Previous | Next >

Related Real Estate Law Questions
My house backs onto a HOA wall which is on my property. My
My house backs onto a HOA wall which is on my property. My property extends 2' beyond the Wall. For 29 years the HOA has been pruning the trees protruding past the wall. They are now asking me to clea… read more
socrateaser
socrateaser
1,031 satisfied customers
I have an old CCNR in place supposedly on my house and
I have an old CCNR in place supposedly on my house and outbuilding saying I shall no rent the out building. How do I cange this CCNR? … read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
Subdivision restrictive covenants renewed without permission
Subdivision restrictive covenants renewed without permission from entire subdivision. Our original subdivision covenants were set to expire in 8 months. There has been some resent discussions/disputes… read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
Bought a home in Nevada 4 years ago. Just a few small CC&R's
Bought a home in Nevada 4 years ago. Just a few small CC&R's on the development. Recently a new developer has purchased the remaining lots (which are the majority of lots in this development). He has … read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
I bought two parcels of land, and the home owner next door
I bought two parcels of land, and the home owner next door build a drive way blocking 100% of access to the county road on my land. What is the process to fix this issue, or sell the land?… read more
Barrister
Barrister
Lawyer
Doctoral Degree
12,142 satisfied customers
My deed was recorded with one set of covenants that were in
My deed was recorded with one set of covenants that were in play at the time in other areas of the development. I have copies of the deeds of the previous two owners of my property showing a different… read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
This question relates to Colorado law. I would like the
This question relates to Colorado law. I would like the answer to incorporate two or more authoritative references, and ideally one such reference should be a reference to article on the subject. Here… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Two Right of Ways: W. Buttery reserves two right of ways.
Two Right of Ways: Fred W. Buttery reserves two right of ways. The first right of way is over Parcel “C” – “The Bridge Lot” any time. The second right of way is over the land of Murray to fix the dam.… read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
I have a piece of property in colorado. The article that I
I have a piece of property in colorado. The article that I just read, How does Colorado Law view landlock pieces of property" refers to a law of eminent domain, "Statute 38-1-102", where a private lan… read more
Legalease
Legalease
Attorney At Law
Doctor of Law w/ highest honors
15,719 satisfied customers
If a Land Owner violates a "Protective and Restrictive Covenant"
If a Land Owner violates a "Protective and Restrictive Covenant" to sell a tract of land, will the violation void the sale?… read more
Tina
Tina
Doctoral Degree
83 satisfied customers
I live in Washington State. Three other home owners and I are
I live in Washington State. Three other home owners and I are in a HOA with a legal covenant. One of the home owners has trees on their property that have grown past the height limit stated in the cov… read more
Phillips Esq.
Phillips Esq.
Attorney
JD
20,528 satisfied customers
Florida HOA restrictive covenant question. Member wants to
Florida HOA restrictive covenant question. Member wants to put in a temporary structure similar to a carport or canopy. We have requested it be removed and apply for a gazebo similar to others with ti… read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
Sorry to keep bringing this up and if youd rather go on to
Sorry to keep bringing this up and if you'd rather go on to something else just pass me on to another expert, but I want to be clear before taking this issue before the Board next week. I ran across a… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
F.S. prohibits the HOA from "unreasonably, knowingly, and willfully"
F.S. prohibits the HOA from "unreasonably, knowingly, and willfully" infringing upon or impairing the rights and privileges set forth in the declaration of covenants or other published guidelines." If… read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,939 satisfied customers
I want to purchase land in a farming county in CA. I have paid
I want to purchase land in a farming county in CA. I have paid my deposit days ago and signed a contract asking for a tile that is marketable. I was just told by my title company that the land I want … read more
BartEsq
BartEsq
Attorney
Doctoral Degree
674 satisfied customers
iam rent to own home the house iam buying dose not have a
iam rent to own home the house iam buying dose not have a well on the land an no way to put one on land the well being used is on someone elsees land with a lot inbetween me a the well… read more
PAX Attorney
PAX Attorney
Attorney
Juris Doctor (JD)
956 satisfied customers
Can our Colorado HOA tell a homeowner they cannot display a sign in th
Our covenants restrict the display of signs "of the type used by contractors, subcontractors, or tradesmen" except "during the authorized time of construction." Our HOA told a HO they had to remove th… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,946 satisfied customers
I have a piece of property legally created, the nieghbors have
I have a piece of property legally created, the nieghbors have been storing farm equipment on it unmoved for 10 years +/-.What are my rights as to having them move it, also I got an opinion from a rea… read more
JBaxLaw
JBaxLaw
Attorney
Doctoral Degree
8,080 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x