Dear Chris,

I thought you might want to publish this on the Deer Creek Farm web site.

After receiving the correspondence of May 30, 2003, from Robert and Katherine Morgan, I realized that it had been a long time since the majority of the homeowners in Deer Creek Farm had had an update on what is happening with the litigation and when we will be able to start the Homeowners Association.

Some of the homeowners in Deer Creek Farm Filing No.1 have been in litigation since 1999. In 2000 the litigation expanded to include the whole of Deer Creek Farm Filing No.1. Deer Creek Farm Filing No.1 is under the jurisdiction of the 18th District Court. The issues before the Court include, among other things, the following:

a. whether Deer Creek Farm Filing No.1 is a common interest community, governed by and subject to C.R.S. '38-33.3-101, et sec.; and
b. whether Deer Creek Farm Filing No.1 is subject to the 1993 Declaration or the 1999 Declaration.

While this sounds simple enough, there are a myriad of factors involved in each one of these simple statements.

The Homeowners in Filing No.1 have been granted a Summary Judgment that says that Deer Creek Farm Filing No.1 is a common interest community, governed by and subject to C.R.S. '38-33.3-101, et sec. The question of which declaration applies to Filing No.1 is still at issue.

C.R.S. '38-33.3-101, et sec. Also known as The Colorado Common Interest Ownership Act (CCIOA) provides specific instructions for each aspect of the formation, governance and maintenance of a Homeowners Association under the statute including what can and what cannot be included in the declaration and the bylaws of such a homeowners association. Deer Creek Farm Filing No. 1 has a judgment which states that the provisions of the statute apply to Filing No.1. Deer Creek Farm Filing Nos. 2 and 3 are not included in the Court's Ruling. Whether Filing Nos. 2 and 3 are common interest communities, governed by and subject to C.R.S. '38-33.3-101, et sec. has yet to be determined.

In June of 2000, one of the Filing No.1 Homeowners hired Barbara Purvis to attend a meeting of the homeowners and to explain the problems associated with the formation of a single Homeowners Association for all filings and to make recommendations to the assembly. Ms. Purvis was eminently qualified to make this presentation as a partner in the Law Firm of Winzenburg, Leff, Purvis & Payne which specializes in the formation and governance of Home Owners Associations. Ms. Purvis clearly stated that Filings 2 and 3 could not presently be combined with Filing No.1 for the following reasons:

1. Filing No.1 is under the jurisdiction of the 18th District Court which will determine the form and control of the Home Owners Association for Filing No.1;
2. The fact patterns of Filings 2 and 3 are different than that of Filing No.1. The litigation regarding Filing No.1 does not involve Filings 2 and 3 and, therefore, Filings 2 and 3 cannot depend on the judgment for Filing No.1 being applicable to Filings 2 and 3;
3. Filings 2 and 3 may not have any common property under the law, this must be determined by a legal process; and
4. Since the 1999 Declaration applies to only a portion of Filings 2 and 3, the formation of any Homeowners Association for Filings 2 and 3 must have the express approval of those Homeowners who purchased their property prior to the filing of the Declaration in November of 1999.

Ms. Purvis strongly recommended that Filings 2 and 3 hire an attorney who specializes in Homeowners Associations to file a "Revocation of Covenants" and to determine what could and what could not be done with regard to a Homeowners Association for Filings 2 and 3. Five or six of the Filing 2 Homeowners met with Jersey Green who had a number of relevant suggestions, but the projected cost was more than those few Homeowners could handle alone and they couldn't interest any more of the Homeowners in Filings 2 and 3 in participating.

Ms. Purvis also said that once the Court has made its final ruling regarding Filing No.1 and Filing No.1 has its Homeowners Association in place, in conformance with CCIOA., if Filing Nos. 2 and 3 have sorted out the problems associated with the filing of the 1999 Declaration and those homeowners who do not fall under its jurisdiction, and if all the Filings 2 and 3 vote to do so, they can petition the Filing 1 Homeowners Association to allow them to merge with Filing No. 1. CCIOA provides a blueprint for this possibility.

However, since Filings 2 and 3 failed to file a Revocation of Covenants within the requisite time period, as recommended in the meeting which took place in June of 2000, Filings 2 and 3 are subject to the 1999 Declaration. This severely limits or even negates the ability of the Homeowners in Filings 2 and 3 to change their Declaration or effect a merger with a Homeowners Association set up for Filing No.1. Filings 2 and 3 must wait until Filing No.1 has its Association in place if they want to merge with Filing 1. However, as Barbara Purvis stated in June of 2000, Filings 2 and 3 may possibly be able to form a Homeowners Association of their own using the 1999 Declaration.

The court case has been set for a five day trial beginning on September 22, 2003. We should have the Court's decision on or before the beginning of February, 2004. Assuming no one appeals the decision, we should be able to start the process, at that time, for Filing No.1.

Sincerely,

J. Bither