Stagecoach Property Owners Ass'n v. Young's Ranch

• Decision Date: 23 December 1982
• Docket Number: No. 82CA0529,82CA0529
• Citation: 658 P.2d 1378
• Parties: STAGECOACH PROPERTY OWNERS ASSOCIATION, a Colorado non-profit corporation, John H. Johnson and Weaver Construction Company, a Colorado corporation, Plaintiffs-Appellees, v. YOUNG'S RANCH, a partnership, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1378

658 P.2d 1378

STAGECOACH PROPERTY OWNERS ASSOCIATION, a Colorado

non-profit corporation, John H. Johnson and Weaver

Construction Company, a Colorado

corporation, Plaintiffs-Appellees, v. YOUNG'S RANCH, a partnership, Defendant-Appellant.

No. 82CA0529.

Colorado Court of Appeals,

Div. I.

Dec. 23, 1982.

Arthur L. Fine, Denver, for plaintiffs-appellees.

Robert H. Gleason, Steamboat Springs, for defendant-appellant.

COYTE, Judge.

Defendant, Young's Ranch, appeals the judgment of the trial court wherein the court found that defendant's interest in certain real property (common area) was subject to a dominant appurtenant easement of use and enjoyment owned and vested in plaintiff Stagecoach Property Owners Association. We reverse.

In September 1971, Young's Ranch, a partnership, the individual partners of which were David J. Young, Robert J. Young, and Mary D. Young, agreed to sell approximately 1,000 acres of ranch property in Routt County, Colorado, to Woodmoor Corporation (Woodmoore). Woodmoor's purpose in purchasing the property was to subdivide the land for residential development. The purchase agreement provided that defendant would take a note and deed of trust to secure the balance of the purchase price after the initial down payment. It also provided that 150 acres would be released from the deed of trust upon payment of the downpayment and that thereafter additional acreage would be released upon payment of the principal at the rate of one acre per $1,000 of principal paid. Partial releases from the deed of trust were to be granted without acreage release payments for all roads dedicated for public use. The agreement further provided that defendant reserved the right to review and approve subdivision plats and plans, agreed not to withhold such approval unreasonably, and agreed to execute such plats or plans so approved as were required for development of the subdivision.

In October 1972, Woodmoor filed a plat of a subdivision entitled Meadow Green which encompassed a portion of the property sold by defendant to Woodmoor. The Meadow Green Subdivision was part of a larger development project known as Stagecoach. A replat of a portion of Meadow Green subdivision was filed in March 1973. Both the plat and replat contained a dedication executed by Woodmoor and the individual partners of defendant granting to "the County of Routt, State of Colorado, for the use of the public, the avenues, streets, drives, courts and places hereon shown." Both plats showed an area labeled "common area" and bore the notation that the development and management of areas designated as "common open space" was to become the responsibility of the Stagecoach Property Owners Association.

In November 1972, Woodmoor recorded a certificate declaring that the document entitled "STAGECOACH DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS" which had been previously recorded was to be applied to the Meadow Green subdivision. That document referred to the establishment of the Stagecoach Property Owners Association whose membership was limited to the record owners of a fee simple title to any lot which was a part of the development. The use and enjoyment of common areas owned by the association was specifically limited to these owners, members of their family, and their tenants or contract purchasers who reside on the property. The owners' right of enjoyment of the common area was subject to the provision that the association had the right to dedicate or transfer all or part of the common areas to any public agency, authority, or utility. However, such dedication or transfer required the express approval of the members of the association.

Following approval of the plat and replat, Woodmoor proceeded to sell lots at Meadow Green to the public. Woodmoor made payments on the principal of the Young note and received partial releases from the lien of the deed of trust. However, that portion of the land designated on the plats as "common area" and which is the subject of the dispute in this case, was not part of the acreage so released.

Woodmoor defaulted in its payments to defendant on September 1, 1973, and eventually went into bankruptcy. The bankruptcy court agreed to allow defendant to commence foreclosure proceedings which resulted in a public trustee's sale. Plaintiffs threatened an injunction action to prevent the inclusion of the "common area" in the public trustee's sale. After it was stipulated that the public trustee's sale could proceed subject to the court determination of the respective rights of the homeowners' association and defendant in the common area, a public trustee's deed was issued to defendant.

The trial court concluded that there had been a statutory dedication since there had been substantial compliance with the terms of § 30-28-133(4)(a), C.R.S.1973, and the applicable Routt County Subdivision Regulations. We disagree.

Section 30-28-133(4)(a), C.R.S.1973, requires all boards of county commissioners to adopt subdivision regulations governing the sites and land areas for schools and parks. In compliance with this requirement, the Routt County Board of County Commissioners approved and adopted subdivision regulations which were in force at the time of the execution of the plat and replat in this case.

The trial court specifically focused upon Routt County Subdivision Regulations § 5.5B and 5.5C. We conclude that neither of these sections provide any basis for the trial court's finding of a statutory dedication. Routt County Subdivision Regulation § 5.5B provides as follows:

"All subdividers in Routt County will convey prior to Final Plat approval by Warranty Deed free and clear of all liens and encumbrances, a minimum of five percent (5%) of the total area of the subdivision as open space, parks, or recreation area to a property owners' association, or similar organization, formed for the purpose of maintaining in perpetuity such designated areas within the subdivision. Any such organization must provide for funding of said conveyance."

This regulation clearly contemplates a "conveyance" and not a "dedication" which terms are not synonymous. City of Leadville v. Coronado Mining Co., 37 Colo. 234, 86 P. 1034 (1906). The term "conveyance" connotes a deed whereby the title to land is transferred from one person to another which deed must be both delivered and accepted in order to accomplish the transfer of the interest in the land. Henry v. Latta, 472 P.2d 694 (Colo.App.1970) (not selected for official publication). In contrast, a dedication has been defined as an appropriation of land by the owner of the fee to some public use and the adoption thereof by the public. Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292 (1952); Ward v. Farwell, 6 Colo. 66 (1881). Thus, this regulation requiring a conveyance of property cannot be relied upon as a basis for finding a statutory dedication.

Furthermore, the trial court erred in finding that there was substantial compliance with this regulation. The conveyance contemplated by the statute must occur prior to final plat approval and must be free and clear of all liens and encumbrances. In this case, there was no conveyance whereby title was transferred from Woodmoor, the subdivider, to the Stagecoach Property Owners Association. Additionally, Woodmoor's title to the common area was subject to defendant's deed of trust, there having been no...