Real Estate & Property

Common questions

Do I need a lawyer to buy a house in Colorado?

Usually not. We would rather say so than charge you for work you do not need. Residential transactions in Colorado are conducted on standard forms promulgated by the Colorado Real Estate Commission. Those forms were drafted over many years by experienced practitioners, and they allocate the rights and obligations of buyer and seller even-handedly. A licensed broker is trained to complete them and can generally do so without an attorney’s involvement. One point deserves attention. The standard drafting tools distinguish the form language, printed in black, from the input language, entered in blue. Read every word of the blue text carefully. Those entries are usually short, and a licensed broker can generally draft them well. A transaction does occasionally require an attorney, especially where brokers are prohibited from providing guidance: to review and interpret title documents (easement provisions, association documents, title records), to draft non-standard contracts, or to resolve a dispute between the parties. Most parties forego attorney review of title documents as a matter of practice and practicality. An overwhelming majority of transactions can be handled end-to-end by a Colorado licensed broker. If you are considering hiring an attorney to assist in a real estate transaction, paying for a broker and an attorney separately is unnecessarily duplicative. Consider instead a broker who is also a licensed attorney. Many brokers hold both licenses, including Chelsea Thomas, the firm’s senior partner. Licensed brokers are trained to defined levels of competency, but the requirements for a brokerage license — no more than a G.E.D. — are modest beside those of legal licensure.

The seller didn’t disclose a problem with the house. Do I have a claim?

Under the standard-form Colorado Real Estate Commission contract, real property is sold as is, where is, and with all faults. A buyer takes the house subject to its defects, whether that means components out of code, unfortunate paint, or broken windows. There is one considerable exception. A seller of real property in Colorado must disclose every latent adverse material defect actually known to them.

• A defect is adverse where it affects the value of the property negatively.
• A defect is material where it affects that value substantially.
• A defect is latent where it cannot readily be observed on a basic inspection. Most importantly, the defect must be actually known to the seller, and that is a high burden. It is not enough that the seller should have known. It is not enough that the seller’s contractor knew of the defect and concealed it. (Real estate licensees carry statutory disclosure duties of their own, C.R.S. §§ 12-10-404, 12-10-407, but those run against the broker rather than the seller.) Such evidence is difficult to find. Proof of a seller’s knowledge ordinarily takes the form of evidence that they attempted to hide the condition: a patched foundation crack, a basement newly drywalled, mold painted over. These cases are hard to prove and are frequently litigated in Colorado. If you believe you have been affected by a failure to disclose, our attorneys can assist, and you are welcome to schedule a consultation.

My HOA won’t let me build, paint, park, or rent out my place. Can they do that?

Often, yes. Associations hold considerable authority in Colorado to determine how owners may use their property, and courts extend them latitude under what is known as the business judgment rule.

The legislature has carved out a growing list of exceptions, however. An association generally may not prohibit, and in most cases may only reasonably regulate, matters including but not limited to:

• Patriotic, political, and religious expression, including flags and signs
• Renewable energy generation devices, such as rooftop solar
• Electric vehicle charging equipment
• Drought prevention measures. An association cannot require turf grass or forbid xeriscaping
• Fire prevention measures and fire-hardened building materials
• Family child care homes
• Accessory dwelling units, where the restriction predates the relevant statute
• Certain affordable housing arrangements

The list grows almost every legislative session, so an association telling you that something is forbidden is not the end of the inquiry. An association may still impose reasonable rules on the number, size, and placement of these things. What it generally cannot do is forbid them outright.

Outside those categories, discretion is broad. We hear regularly from owners whose neighbors were permitted to do something, and who were then told their own identical conduct violates the covenants. Sometimes the other violators sit on the board. Even then, courts apply the business judgment rule, which grants enough latitude to permit that kind of uneven enforcement.

A great many association disputes are, in the end, political. Whoever can assemble enough votes to control the board controls the decisions.

The plat, the survey, and the fence don’t agree with each other.

This is more common than most owners expect, and the documents disagree for ordinary reasons rather than sinister ones. A recorded plat shows how a subdivision was laid out. A survey shows what a surveyor found on the ground on a particular day. A legal description in a deed may have been written long before either, sometimes by reference to monuments that no longer exist. A fence, meanwhile, records where somebody once decided to put a fence. Where these disagree, the question is which of them controls and what has happened on the ground since. Long-standing occupation, an agreement between former owners, or an improvement built in reliance on the wrong line can all affect the answer. Begin by collecting the documents: your deed, the recorded plat, any survey, and your title commitment or policy. Bring them to a consultation. Most of these matters resolve through a boundary agreement recorded between the neighbors, see C.R.S. § 38-44-112, which is far cheaper than litigating where the line is.

My landlord won’t make repairs. What can I do?

Start with written notice, and keep proof that you sent it. Colorado’s warranty of habitability applies to residential leases by statute. C.R.S. § 38-12-503. A landlord cannot waive it or disclaim it in the lease. C.R.S. § 38-12-508. Once a tenant gives notice of a qualifying condition, the landlord must begin remedial action within twenty-four hours where the condition materially interferes with life, health, or safety, and within seventy-two hours for any other condition the statute covers. C.R.S. § 38-12-503(2)(b), (4). Two practical points carry most of the weight. Send the notice the way your landlord normally communicates with you, and retain sufficient proof that it was delivered. A habitability claim frequently turns on whether notice can be proven, rather than on whether the condition existed. What follows from a landlord’s failure to act is more involved, and the remedies available to a tenant have changed materially in recent years. C.R.S. § 38-12-507. When you are looking at these rights and requirements, make sure you are relying on the most recent version of the statutes. Your rights and the landlord’s obligations depend heavily on the facts.

I am a tenant and cannot afford a lawyer. Where should I go?

To a tenants’ rights organization, in most cases, and we will tell you so rather than quote you a fee. Colorado has a network of non-profit and legal aid organizations that represent tenants at no cost or on a sliding scale. For the great majority of residential tenancy matters they are better placed to help than we are. They know the local courts, they carry the volume, and they do not charge.

• Community Economic Defense Project is where we send people first. The most experienced tenants’ rights attorneys in the state work here. They combine legal representation with rental assistance and navigation, which is often what a tenancy matter actually needs.
• Colorado Legal Services is the statewide civil legal aid provider.
• Colorado Poverty Law Project runs eviction legal defense. We continue to take selected tenant matters, particularly where a habitability failure has caused significant harm or where a statute shifts fees to the landlord. If your situation is one of those, tell us. If it is not, we would rather point you somewhere useful than take your money.

Have a different question? Our attorneys have answered dozens more in Resources.