Association of Owners, Satellite Apartment, Inc. v. Otte

Decision Date20 May 1976
Docket NumberNo. 75--554,75--554
Citation38 Colo.App. 12,550 P.2d 894
PartiesASSOCIATION OF OWNERS, SATELLITE APARTMENT, INC., a Colorado Corporation, Plaintiff-Appellant, v. Walter H. OTTE and Ruth I. Otte, Defendants-Appellees. . I
CourtColorado Court of Appeals

William D. Schaneman, Colorado Springs, for plaintiff-appellant.

Robert Dunlap, Colorado Springs, for defendants-appellees.

COYTE, Judge.

Plaintiff, Association of Owners, Satellite Apartment, Inc., (Association) appeals from an adverse summary judgment holding that its suit instituted on November 19, 1973, for injunctive relief against defendants, Walter H. and Ruth I. Otte, was barred by the one-year statute of limitations set out in C.R.S. 1963, 118--8--4, (now § 38--41--119, C.R.S. 1973). We affirm.

The Association's original complaint consisted of two counts: The first alleged that defendants had violated certain provisions of both the condominium declaration and the corporate bylaws of the Association, in that defendants had enclosed a balcony contiguous to the condominium unit which they owned; the second count alleged that, by virtue of constructing the glass enclosure, defendants trespassed upon a 'limited common element.' The Association prayed for a mandatory injunction requiring removal of the enclosure. Prior to the hearing, the Association abandoned its cause of action in trespass, and hence we do not reach the issue of whether the one-year statute of limitations barred that action.

The case was submitted to the court on the following stipulated facts: That Plaintiff is an association of all owners, tenants and occupants of the Satellite apartment building, which building is a condominium created pursuant to a recorded condominium is declaration; that the condominium is composed of individual units as defined in the condominium declaration; that defendants owned and occupied unit C--1007 and were and are members of the Association; that the Association's affairs were controlled by its bylaws; that defendants had the exclusive use of the balcony adjoining their condominium unit while the Association reserved the right of entry onto said balcony; that defendant Ruth I. Otte was appointed by the board of directors as a member of the architectural committee to study a standard structure for balcony storage; that memoranda were circulated to all occupants stating that balconies were 'limited common elements' as defined in the condominium declaration, and that occupants were specifically prohibited from constructing balcony enclosures; that on or about September 30, 1970, defendants completely enclosed the balcony appurtenant to their condominium unit with glass from floor to ceiling without approval of the board of directors; that on August 13, 1971, the board of directors of the Association demanded removal of the balcony enclosure; that defendants have refused to remove said enclosure and continue to utilize the enclosed balcony space as an interior storage and work area; and that the Association has no remedy at law.

Based on arguments of counsel and documents submitted (the condominium declaration and bylaws), the court thereupon issued findings of fact and conclusions of law to the effect that the Association's cause of action was barred by the applicable one-year statute of limitations, either C.R.S. 1963, 118--8--4, or § 38--41--119, C.R.S. 1973.

The main thrust of the Association's argument on appeal is that its claim for injunctive relief proceeded from two separate sources, the condominium declaration and the bylaws. It therefore contends that if its action to enforce the provisions of the condominium declaration was in fact barred by the one-year statute of limitations, it should still have been permitted to pursue its claim for injunctive relief to enforce the provisions of the bylaws as a Contract entered into between members of the Association, I.e., that the action for violation of the bylaws was not barred. We disagree.

Our conclusion is based on an analysis of the Condominium Ownership Act, § 38--33--101 et seq., C.R.S.1973, (formerly C.R.S. 1963, 118--15--1 et seq.) read in conjunction with § 38--32--101 et seq., C.R.S. 1973, creating estates above the surface (formerly C.R.S. 1963, 118--12--1 et seq.), and the applicable statutes of limitations.

The language of C.R.S. 1963, 118--8--4, amended by Colo.Sess.Laws 1972, ch. 100, 118--8--4 at 616, now § 38--41--119, C.R.S. 1973,...

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12 cases
  • Balle-Tun v. Zeng & Wong, Inc.
    • United States
    • U.S. District Court — District of Colorado
    • 13 Mayo 2022
    ... ... 1994) (quoting ... Assoc. of Owners v. Otte , 550 P.2d 894, 896 ... (Colo.App. 1976)) ... ...
  • McDowell v. U.S.
    • United States
    • Colorado Court of Appeals
    • 24 Febrero 1994
    ...of relief sought as a result of the encroachment within the twenty-foot setback area because, according to Association of Owners v. Otte, 38 Colo.App. 12, 550 P.2d 894 (1976), it is the nature of the right sued upon and not the nature of the relief demanded which governs the applicability o......
  • San Juan Basin Consortium v. Enervest San Juan
    • United States
    • U.S. District Court — District of Colorado
    • 18 Octubre 1999
    ...limitations period. See McDowell v. United States, 870 P.2d 656, 660-661 (Colo.App. 1994); Association of Owners, Satellite Apartment, Inc. v. Otte, 38 Colo.App. 12, 550 P.2d 894, 896 (1976). Furthermore, where a statute of limitations is specifically drafted to relate to special cases, it ......
  • Persichini v. Brad Ragan, Inc.
    • United States
    • Colorado Supreme Court
    • 6 Abril 1987
    ...to the case at issue, Schafer v. Aspen Skiing Corp., 742 F.2d 580, 582 (10th Cir.1984); Association of Owners, Satellite Apartment, Inc. v. Otte, 38 Colo.App. 12, 15, 550 P.2d 894, 896 (1976), sections 13-21-401(2) and 13-80-127.5(1) recognize that product liability actions may take many fo......
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