## Facts

- A residential subdivision contained 63 lots and a common park with recreational amenities owned by the homeowners association.
- Recorded protective covenants governed use and maintenance of the park but did not expressly require mandatory dues; maintenance had been funded through voluntary assessments.
- The covenants included an amendment clause permitting them to be “waived, changed, or modified” by a written instrument signed by owners of 75% of the lots.
- In 1995, lot owners approved an amendment (by the required supermajority) requiring mandatory association membership, authorizing annual assessments for common-area maintenance and improvements, and permitting liens for nonpayment.
- A lot owner who purchased before the amendment did not consent, refused to pay, and sued to invalidate the amendment and prevent a lien.

## Issues

1. Whether an amendment clause allowing covenants to be “waived, changed, or modified” authorizes adoption of a new covenant imposing mandatory membership, assessments, and lien rights.
2. Whether, absent an express assessment covenant, the association has implied authority to levy assessments for maintenance of common areas based on the subdivision’s recorded declarations.

## Decision

- The Colorado Supreme Court reversed the court of appeals and upheld the amendment as within the scope of the amendment clause.
- The court also held, as an independent ground, that the recorded declarations impliedly created a common interest community and implied authority in the association to impose mandatory assessments for common-area maintenance.
- The case was remanded for calculation of the association’s damages consistent with the court’s holdings.

## Legal Principles

- Restrictive covenants are interpreted to effectuate the parties’ intent as shown by the instrument as a whole; interpretation is a question of law reviewed de novo.
- An amendment provision authorizing covenants to be “waived, changed, or modified,” without subject-matter limitations, can permit adoption of new covenants when the procedure is clear and followed and the new obligation is reasonably related to the development’s common scheme.
- The rule favoring free use of property applies when covenant language is genuinely ambiguous and does not override a reasonable interpretation consistent with the recorded plan.
- Where recorded declarations establish common property, assign an association responsibility to manage and maintain it, and subject lots to a shared development scheme, a common interest community may exist by implication.
- In such a community, an association may have implied power to levy mandatory assessments necessary to maintain common areas, even without an express assessment covenant.

## Conclusion

The court held that a properly adopted supermajority amendment could impose mandatory membership, dues, and lien enforcement, and that the subdivision’s declarations independently implied a common interest community in which the association had implied authority to assess owners for common-area maintenance.


Evergreen Highlands Ass'n v. West, 73 P.3d 1 (Colo. 2003)