specially concurs:
The majority concludes that the townhome complex is not a condominium because the individual lot owners do not co-own the common areas of the townhome complex as required under the statutory definition of a condominium set forth in section 38-33-102, 16A C.R.S. (1982). I agree with that conclusion. I also initially agree with the majority’s conclusion that section 13-21-115, 6A C.R.S. (1993 Supp.) is inapplicable. I write separately however to express my concern that this conclusion may be inaccurate depending upon the contents of the Declaration of Covenants, Conditions, and Restrictions for Trailside Filing No. 5 (the “Declaration”), by-laws and rules of the Association which are not before us.
The Declaration appears to be a document of nineteen pages in length, however, only pages one, two, four and nineteen were submitted to the trial court. Neither was a copy of the by-laws or rules of the Association filed with the court. As such, the ability to make a precise determination as to the relationship between the Association and the lot owners is speculative at best.
Contrary to the majority’s outright rejection of section 13-21-115, I would leave open the possibility that the Colorado landowner liability statute may apply depending on the wording of the missing documents.
The majority bases its conclusion upon the finding that “the owners have a continuing right independent of association consent to make use of the common areas by reason of their ownership of lots in the townhome complex, whereas trespassers, licensees, and invitees have no right to enter in absence of consent.” Maj. Op. at 1202.
As recognized by the majority, Article I, section 3 of the Declaration clearly states that the common areas are “owned by [the Association] for the common use and enjoyment of the Owners.” The Declaration further provides that title to the common area of the townhome complex will be conveyed by the developer to the Association. Declaration, Art. IV, § 3.
The Declaration grants each owner of a lot the ability to delegate their “right of enjoyment to the Common Area and facilities” to certain persons pursuant to the By-Laws. Declaration, Art. IV, §§ 1(c), 2.
Although right to use of the common areas is granted by virtue of owning a townhome, Article III, section 1(c) of the Declaration grants the Association the right to suspend an owner’s right to use of the recreational facilities. As such, the right to use these areas may be taken away for a certain period of time and under certain circumstances. Article III of the Declaration specifies further information relating to the common areas of the complex. However, because this section is incomplete, it cannot be determined what impact this may have upon the majority’s conclusion that section 13-21-115 does not apply.
It is obvious that further information concerning the relationship between the Association and the lot owners exists within the missing documents. It is also certain that duties imposed contractually upon the owners (i.e. through rules, by-laws or declarations) by the Association may increase the base duty owed to the lot owners by the Association.
However, because the record is incomplete as to the Declaration, by-laws and other rules of the Association, it is inappropriate for this court to determine with absolute certainty the duty owed by the Association to the owners.
Therefore, I would remand to the trial court with directions to determine the duty owed to Acierno under the standard set forth in the majority opinion, leaving open the possibility that the Colorado landowner liability statute may apply.