38-41-119. One-year limitation.

Statute text

No action shall be commenced or maintained to enforce the terms of any building restriction concerning real property or to compel the removal of any building or improvement on land because of the violation of any terms of any building restriction unless said action is commenced within one year from the date of the violation for which the action is sought to be brought or maintained.

History

Source: L. 27: p. 606, 47. CSA: C. 40, 154. CRS 53: 118-8-4. C.R.S. 1963: 118-8-4. L. 72: p. 616, 146.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Future Interests in Colorado", Part I, see 21 Rocky Mt. L. Rev. 227 (1948); Part II, 21 Rocky Mt. L. Rev. 1 (1948); Part III, 21 Rocky Mt. L. Rev. 123 (1949).

Section applies to actions pertaining to public land. While this section does not bar an action brought by the state, there is no exception to its applicability to private citizens who bring actions pertaining to public land. Styers v. Mara, 631 P.2d 1138 (Colo. App. 1981).

The one-year statute of limitations embodied in this section applies to actions which accrued respecting estates in airspace after 1972, the year in which that statute was amended. Ass'n of Owners, Satellite Apt., Inc. v. Otte, 38 Colo. App. 12, 550 P.2d 894 (1976).

This section, rather than general statute of limitations, controls. Since this section of specifically drafted to relate to actions to enforce restrictions concerning real property, it controls an action to enforce a restriction on the use of an estate and to compel removal of the improvement erected in violation of the terms of that restriction to the exclusion of the general statute of limitations relating to actions on a contract. Ass'n of Owners, Satellite Apt., Inc. v. Otte, 38 Colo. App. 12, 550 P.2d 894 (1976).

Administrative hearing is not the commencement of an action for purposes of this section. Styers v. Mara, 631 P.2d 1138 (Colo. App. 1981).

Action to enforce restriction commenced 21 months after expiration date barred. A covenant in a warranty deed, requiring grantee to construct a house of a stated value within a prescribed time upon the land conveyed, and providing that upon grantee's default the property was to revert to the grantor, is a "restriction concerning real property" within the meaning of this section; thus, an action to enforce the restriction, commenced 21 months after the expiration date stated in the covenant, was barred by this section. Wolf v. Hallenbeck, 109 Colo. 70, 123 P.2d 412 (1942).

But where each day of noncompliance with an ordinance constitutes a separate violation, enforcement of the ordinance is not barred. Town of Grand Lake v. Lanzi, 937 P.2d 785 (Colo. App. 1996).

Zoning ordinance is not a "building restriction" within the meaning of this section. Town of Grand Lake v. Lanzi, 937 P.2d 785 (Colo. App. 1996).

Section held to provide no defense. Seeger's Estate v. Puckett, 115 Colo. 185, 171 P.2d 415 (1946).

Statute of limitations defense was not preserved on appeal where defendants raised the defense in their answer to plaintiffs' second amended complaint and in the trial management order, but failed to bring the defense to the court's attention in opening or closing statements, in an oral motion for a directed verdict, or in a motion for a new trial. Highland Meadows Estates v. Buick, 994 P.2d 459 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 21 P.3d 860 (Colo. 2001).

A setback requirement contained within a duly adopted planned unit development plat is a building restriction concerning real property as contemplated by 38-41-119. McDowell v. U.S., 870 P.2d 656 (Colo. App. 1994).

Equitable relief and money damages barred. The word "enforce", as used in 38-41-119 in relation to contractual obligations, embraces a remedy of money damages as well as equitable relief. Section 38-41-119 was meant to apply to any action to enforce a building restriction, regardless of the nature of the relief requested. The nature of the right that plaintiff seeks to exercise controls the applicability of the statute of limitations. Therefore, plaintiff's tardy claim for equitable relief, in the form of removal of encroaching improvements that violate the PUD setback area requirement, and money damages is barred by the statute of limitations of 38-41-119. McDowell v. U.S., 870 P.2d 656 (Colo. App. 1994).

Applied in Nicol v. Nelson, 776 P.2d 1144 (Colo. App. 1989), cert. denied, 785 P.2d 917 (Colo. 1989).

PART 2
HOMESTEAD EXEMPTIONS

Annotations

Law reviews: For article, "Homestead Marshalling", see 14 Colo. Law. 1612 (1985).