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RESTRICTIVE COVENANTS

Posted on by rodneyfitzhugh

Restrictive covenants recorded in the public records limit the use and occupancy of real property. A restriction can take many forms.  For example, a covenant  might limit building sizes, building types and architectural styles.  Other covenants might actually mandate a minimum home size, the minimum number or location of trees or the minimum square footage of lawn required on a lot. A covenant might prohibit uses allowed on the property. Many residential developments have covenants prohibiting commercial or business use of any kind.  In fact, during the past 50 years, such restrictions have become very common and highly detailed. In fact, such covenants now affect almost all residential developments and even agricultural lands in the State of Colorado.

Restrictive Covenants can sometimes enhance the value of real estate, but they sometimes may diminish value.  Furthermore, such restrictions can lead to misunderstandings and disputes among affected property owners and Home Owner Associations.

In Colorado, common law and various statutes strictly regulate the creation and enforcement of restrictive covenants. For example, the Common Interest Ownership Act mandates specific procedures that an HOA must follow when attempting to enforce covenants. The applicable laws are in some cases are quite extensive and detailed.  Misinterpretation of these rules or  simple ignorance about their existence often leads to difficulties among affected owners.

Weaver & Fitzhugh, PC advises numerous Homeowner Associations and individual homeowners regarding restrictive covenants.  We can help you determine whether certain covenants apply to your property, and, if so, how they affect your legal rights.  We can also help individual land owners or HOA’s create, modify or revoke covenants.  If you manage or sit on an HOA governing board, we can help you develop appropriate covenants that benefit the entire community.  With our assistance, individual owners can decide how best to enjoy their real property without creating covenant issues for themselves.  If you need assistance with creation, modification, compliance or enforcement of restrictive covenants, please to call us for detailed advice about your situation.

 

Posted in General Law Tips, Real Estate

MEDIATION: SETTLE DISPUTES COOPERATIVELY

Posted on by rodneyfitzhugh

You may not need a judge or arbitrator to resolve disputes, conflicts, and other difficult issues

What is Mediation

Mediation is an alternative to traditional litigation or binding arbitration. It is confidential and voluntary. As a result the parties control the outcome of their disputes. The process provides an informal, non-binding process to:

  • Identify and air issues.
  • Make needs and objectives clear to all parties.
  • Identify common interests and values as well as competing interests and values.
  • Build on common interests and values toward resolution of disputes by balancing competing interests and conflicting values.

Benefits of Mediation

Mediation provides many benefits, as opposed to litigation or arbitration, including:

  • A fair and effective form of alternative dispute resolution.
  • A forum where the parties maintain greater control over the resolution of disputes.
  • A statistically better chance that disputants will, in the future, respect the resulting boundaries  than if they litigate the outcome through courts or arbitrators.
  • Confidentiality:  unless the parties mutually decide otherwise. Public disclosure of sensitive information is avoided, except when all parties agree to disclose.
  • Fosters mutual understanding, which often leads to more cooperation, better commutication and improved relationships.
  • Mediation generally consumes less time, less money and fewer emotional resources than litigation.

The Mediator’s Role

The mediator provides a safe, neutral, non-adversarial environment, helps the parties identify and frame the issues in constructive ways, and facilitates development of a mutually acceptable solution. A mediator may assume a variety of roles and techniques in assisting the parties. Mediators help the parties:

  • Approach the challenges of a difficult conflict with a constructive attitude.
  • Embrace reasonable solutions.
  • Use positive sources of power to influence one another.
  • Approach conflicts creatively.
  • Identify and address self-limiting behavior that may hinder resolution.
  • Learn new ways to process input received from the other parties.
  • Identify multiple options for resolving conflict.
  • Develop sustaining relationships and initiate constructive patterns of communication in their work and their lives.
  • Build the capacity to manage and cope with future conflicts in constructive ways.

Rodney E. Fitzhugh is certified mediator with extensive training and experience in mediating difficult issues.  If you are involved in a lawsuit or other significant conflict, or have difficult issues and concerns affecting your marriage, your family, your business, or your other important relationships, please call us. We can help you determine whether Mediation may be an appropriate choice for you.

Posted in General Law Tips, Mediation

FOR SALE BY OWNER REAL ESTATE CONTRACTS

Posted on by rodneyfitzhugh

Do you have a home For Sale by Owner?  Would you like to buy or sell a home without the assistance of a real estate agent?  Maybe you’ve found a buyer without an agent or maybe you know of someone who might sell a home but has not listed it.  Maybe you just don’t want to pay a 5 or 6 percent real estate commission.  But can you get through the transaction without an agent?  With the help of a knowledgeable real estate lawyer, in many cases the answer is yes.  Weaver and Fitzhugh, PC can assist with all aspects of a real estate transaction from writing contracts to preparing mortgages, promissory notes and trust deeds to reviewing title commitments, CCR’s, and other related documents. We can arrange for title insurance, escrow and closing services as well.

If you have a home for sale now or are contemplating sale or purchase of a home or other real property, please call us for an appointment.

Posted in General Law Tips

Adverse Possession and Boundary Disputes

Posted on by rodneyfitzhugh

The law of Adverse Possession often leads to Boundary Disputes in rural Colorado. Such disputes are common and often far more complex than most property owners may imagine.  Through Adverse Possession, a person may, under certain circumstances and after passage of sufficient time, acquire legal title to her neighbor’s property, without every receiving a deed. Commonly referred to as “Squatters’ Rights,” this legal doctrine can apply in a number of circumstances. It most often arises when someone occupies – continuously for at least 18 years – property she does not own. To acquire ownership by Adverse Possession, the claimant must make exclusive use of the property under circumstances that would make any reasonable owner aware that the occupant asserts ownership of the land to the exclusion of the record owner.   The occupant under Adverse Possession must prove continuous, obvious, exclusive possession of the property and use of a character  clearly hostile to the interest of the true owner.  Claims based on Adverse Possession often arise when property changes hands and the new owner discovers that a fence, previously presumed  to have been the boundary, doesn’t actually lie on the established, legal boundary.  Resolving such disputes usually requires a deep dive into the history of the fence, the boundary and the relationship between the neighboring property owners over a long period of time.  Please call Weaver & Fitzhugh, PC if you have concerns or need more information about Adverse Possession or related issues.

Posted in General Law Tips, Real Estate

Dividing Property in Divorce: Marital and Separate Property

Posted on by rodneyfitzhugh

Many lay people do not understand that, before dividing property in divorce,  a judge must first distinguish between marital and separate property.  The judge cannot simply divide all property and debt equally between the parties.  Although that happens sometimes, Colorado law does not require such a result.  The law actually requires courts to follow a multi-step process in awarding property to divorcing spouses.  The Court must first have a clear understanding of all property owned by the spouses together and as individuals.  The court must then classify each item of property as separate (belonging to only one spouse) or as marital (belonging to both spouses).  The court then awards each item of  separate property to the appropriate spouse, husband or wife.  Finally, the court must divide the marital property not equally, but  fairly between the spouses.

Classification of property as marital or separate can have a profound impact on the over-all division of property, because neither spouse has any rights to the separate property of the other.  The name on the title of any specific property does not necessarily affect its classification of marital or separate.  In classifying property as marital or separate, the court must follow rules created by the State Legislature.  As a general rule, property acquired by either spouse before the date of the marriage is separate, and property acquired after the marriage is marital.  However, the statute creates numerous exceptions to these general rules.

Many variable factors can influence a court to divide the marital property in some proportion other than 50-50.  Such factors include, for example,  age, health, earning ability of each spouse and the value of separate property awarded to each individual spouse. In some unusual cases, the court may award a large majority of the marital property to one or the other spouse.   In other cases, it may divide the property very nearly equally.

For a better understanding of property division and all other issues arising in divorce, contact Weaver & Fitzhugh, P.C. today.  Our lawyers and staff have over fifty years’ combined experience in handling all aspects of divorce. We can assist in finding creative solutions to avoid costly litigation and will do so whenever possible.  However, if necessary, we will provide expert, effective assistance in litigating the most difficult disputes.

Posted in Family Law

Forming A Small Business

Posted on by rodneyfitzhugh

Do you plan to start a small business?  Do you already own one as a sole proprietor or in partnership with others?  In either case,  you may benefit from organizing your business as a corporation, limited liability company or other business entity.

Among other advantages, a business entity can help insure that legal liabilities and other potentially adverse consequences resulting from business activities – accidents and business disputes, for example –  fall not on the individual business owner and her personal assets, but only on the business entity and its assets.  However, failure to choose the appropriate business form – or failure to properly manage and administer it – can have negative consequences for the individual owner.

For answers to your questions about small business entities and assistance in forming one, please visit our office or call for an appointment today.

Posted in Business Entities

Adverse Possession in Colorado

Posted on by rodneyfitzhugh

A few of years ago, in response to a notorious Boulder County Court battle between two neighbors, the Colorado Legislature enacted statutory changes to the Common Law rules of Adverse Possession. In essence, the legislature enacted provisions making it more difficult for anyone to acquire title to the real estate of another person through adverse possession.   However, contrary to rumor and conventional wisdom, the doctrine of adverse possession remains a very important part of Colorado Real Estate Law.  In Colorado, under certain circumstances a so-called “squatter” may still acquire rights in real estate and sometimes even outright title.  It therefore remains important for Colorado real property owners to act diligently and within legal limits if  some third party is now (or has in the past) occupied or trespassed upon their real estate for any substantial period of time.  Despite recent legislative changes, failure to act diligently in such situations could ultimately result in loss of real property rights. Weaver & Fitzhugh, PC prosecutes and defends adverse possession cases throughout the Seventh Judicial District, including Montrose, Delta, Ouray and San Miguel (Telluride/Norwood) Counties.  For more information about adverse possession and other real property issues, please call or visit our offices today.

Posted in General Law Tips, Legal Quick Tips, Real Estate

Do You Have a Right to a Mechanic’s Lien?

Posted on by rodneyfitzhugh

If you have done work or supplied materials contributing to any improvement to real property within the State of Colorado – with or without a contract – and have not received payment, you may have the right to collect payment for your materials or work by recording and foreclosing a mechanic’s lien.  Perfection and enforcement of a Lien requires very strict adherence to the requirements of Colorado’s Lien Statute.  Failure to meet deadlines and adhere to technical legal requirements can  invalidate a mechanic’s lien.

Homeowners who have paid the full contract price for construction of their home may in some circumstances defeat a mechanic’s lien and, sometimes, recover attorney fees for the costs of defending against the lien’s foreclosure.

For more information about creation, perfection and enforcement of Mechanic’s Liens, please call or visit us today.

Posted in General Law Tips

DUI: Drugs, Alcohol and Driving in Colorado

Posted on by rodneyfitzhugh

If arrested for Driving Under the Influence, Driving While Ability Impaired or Driving With Excess Alcohol  (DUI/DUID, DUI per se, or DWAI) in Colorado, you should contact a lawyer immediately.  People arrested in Colorado for any of these charges often must defend two entirely separate legal proceedings: one through the court system and one through the Department of Revenue, Division of Motor Vehicles (D.M.V.).  Because the D.M.V. proceeding requires the driver to take the initiative by requesting a hearing with the D.M.V. within seven days of arrest, many drivers wind up losing their driver’s licenses at the D.M.V. long before they ever have their “day in court.”

Colorado’s Express Consent law obligates a driver to submit to drug and/or alcohol testing following a valid arrest for any of these charges.   Failure to cooperate in the testing or test results showing a BAC beyond the legal limit can lead to license revocation before the driver even has his “day in court.”  However, before the arresting officer has a legal right to request an alcohol or drug test, he must have probable cause to arrest the driver and he must follow the other procedures specified by law.  If the arresting officer fails to follow the legal protocol, the driver may have valid defenses to both criminal conviction and to driver’s license revocation.

Following initial license revocation upon arrest, the driver has a right to a hearing in the DMV to determine the validity of  the revocation.  Unless the driver takes the initiative to request that hearing, she loses the right.  Failure to seek effective legal counsel may also jeopardize the driver’s chances of prevailing at the hearing.

DUID charges involve similar considerations for the defendant and his attorney, but also differ substantially from alcohol-related charges.  Such cases are sometimes less difficult to defend than alcohol cases. In alcohol cases, the law presumes the driver was under the influence if her B.A.C. exceeded .08.   In contrast, the law does not create any presumptions of DUID based solely on the level of any other drug present in the driver’s blood. To obtain a conviction in a drug case, the prosecuting attorney will have to prove much more than the amount of any particular drug detected in the driver’s blood.  This requirement creates some potential advantages for the defendant and his attorney. However, any amount of drugs in your system can potentially support a conviction in DUID charges, so it is important for a defendant to consult competent legal counsel. DUI arrests based on drugs have risen sharply in recent years, and are prosecuted vigorously throughout Colorado.

To find out whether you may have a right to a temporary driver’s license and an administrative hearing through the D.M.V., whether you have valid defenses to drug or alcohol driving charges, and for other advise relating to DUI/DUID, DWAI and similar legal matters, please call or visit our offices today.

Posted in General Law Tips

Common Law Marriage in Colorado

Posted on by rodneyfitzhugh

Colorado Law recognizes and treats Common Law Marriage precisely as it does licensed, ceremonial marriages.   However, most people have very little understanding about what creates a Common Law Marriage.  For example, many people ask us ‘”but don’t I have to live with my ‘significant other’ for at least seven years before we can have a common law marriage?”  The answer is simply “NO!”  Colorado Law requires no minimum period of cohabitation for creation of a Common Law Marriage.  The requirement for such a marriage really comes down to whether both parties intend to be married and whether they have lived together in the State of Colorado with the necessary intent.

Common Law marriage may affect the rights of “unmarried” couples in many situations, including: dissolution of marriage, parenting rights, child support, alimony or maintenance, estate planning, and distribution of property under a will or similar situation following death.   For more information about how  Common Law Marriage may affect the legal rights and duties of “unmarried” couples in Colorado, call or visit our offices today.

Posted in Family Law