• Community Information
• Governing Documents
• Design Review Committee
• 'Homeowners Association'
• Terms and Legal Concepts

The Heights at Jackson Creek subdivision is located in Monument Colorado in the northern part of El Paso County. We have provided links to each of the various associated government entities if you wish to learn more.

Children that live in The Heights attend Lewis Palmer District 38 schools. Specifically, our schools are:

• Elementary: Bear Creek
• Middle:        Lewis-Palmer
• High:            Lewis-Palmer

There are 313 homes in the Heights at Jackson Creek, 161 of which are in Filing No. 1 and 152 of which are in Filing No. 2.

There is a park located on Tovera Drive and Old Creek Drive. It features a grassy area for games, playground equipment, including swings, slides and a climbing structure and some picnic tables.

In 2009 a park with a basketball court was built on the southern side of the subdivision. It is located on Misty Creek Drive between Candle Creek Drive and Toreva Drive.

In the Spring of 2011, a new park was built in the open space between Agate Creek and Split Creek.

TriView Metropolitan District has ownership and responsibility for maintaining the parks and common areas in the subdivision as well as the roads, water, and sewer.

There are several documents that are legally binding on each homeowner in this subdivision. They can be located under the Governing Documents section of this website.

Elite Properties of America, Inc. (better known as Classic Homes) created the subdivision with two filings. Here is a map to the subdivision. (This is an exceptionally large file, it may take a while to load.) There are separate Covenants, Conditions, and Restrictions (CC&Rs) for each of the two filings. The other governing documents apply to both filings.

• CC&Rs Filing No. 1
• CC&Rs Filing No. 2

This is neither legal advice nor an exhaustive explanation of this legal document. If you need a more detailed explanation, you should read the document and if need be hire a real estate attorney to help you fully understand it.

The covenants 'run with the land', which means they are part of all current and all future homeowners' title. The Covenants state that the developer will create and record Design Standards and that a Design Review Committee (DRC) will be appointed by the developer. There is no mention of a Homeowner's Association in the CC&Rs.

Amendment and Termination of the CC&Rs: The CC&Rs can be amended with the approval of 2/3 of the homeowners. The CC&Rs can be terminated at any time with approval of 75% of the homeowners. It appears that either of these actions would require a document signed by the needed percentage of lot owners, with each signature notarized and the entire document recorded with the county.

Enforcement of the CC&Rs: The CC&Rs can be enforced by the Design Review Committee or any homeowner. A homeowner or the DRC can sue a homeowner for damages, an injunction (stop the homeowner from doing something) or other legal remedies. If the DRC or the homeowner is successful in a legal action, he shall be awarded attorney's fees and costs.

We have not received the CC&Rs for Filing No. 2 at this point and therefore do not know the answer.

• Design Standards
• Modification to Design Standards

This document is basically written in plain English and every homeowner should read it periodically to make sure they are in compliance.

Section I explains the intent of the developer. Section II, Part One lists site improvement standards and use restrictions. The topics covered include: standards for construction of homes and outbuildings, standards of owner maintenance of the property, a prohibition on non-developer built privacy fences, standards for fence design, outdoor lighting, vehicle parking, junk vehicles, offensive activities, and other topics. Section II, Part Two details the landscape requirements and weed control. Section III, Part Three details the architectural standards, including roofs, paint and other outdoor finishes and other outdoor structures.

• Reconstitution and Assignment of Approving Authority

The Reconstitution and Assignment of Approving Authority for the Heights at Jackson Creek Filing No. 1 and No. 2 is the document that shows that the developer's authority over the subdivision has ended. The document transfers power from the developer to the Design Review Committee and appoints the three initial DRC members.

This document states that the appointees can be removed or appointed by majority vote of the homeowners in a document filed with the County. Vacancies in the DRC can also be filled by the remaining DRC member or members appointing a new member.

For more information on the Design Review Committee, please see below.

Any individual homeowner in the subdivision can take legal action against another homeowner in the subdivision who is in violation of covenants. Depending on the circumstances, the court could issue a ruling forcing the homeowner in violation to comply and require payment of court costs and attorney's fees or potentially damages. In addition, the judge could order non-complying improvements (like fences, sheds, etc.) to be removed.

Covenants can also be enforced by the Design Review Committee (DRC). The DRC can take any action a homeowner could. Additionally, it has the ability to enter onto property, make repairs, and bill the homeowner for the work. If the homeowner does not pay, the DRC can file a lien against the property. More details can be found in the Design Review Committee portion of this FAQ.

The CC&Rs can be amended by a document signed by the 2/3 of lot owners. It looks like each signature must be notarized, and the entire document recorded with the county.

If you are contemplating organizing an effort to modify the covenants, you need to obtain legal advice from an attorney who works primarily in this area of the law. That attorney can provide legal advice on how to do it, what other state or local laws impact the covenants, and other such issues.

CC&Rs can be terminated at any time by a document signed by 75% of lot owners. It looks like each signature must be notarized, and the entire document recorded with the county.

If you are contemplating organizing an effort to modify the covenants, you need to obtain legal advice from an attorney who works primarily in this area of the law. That attorney can provide legal advice on how to do it, what other state or local laws impact the covenants, and other such issues.

The Design Review Committee is a group of three people, originally appointed by the developer, who were tasked with reviewing and approving landscaping, new buildings (such as sheds, etc), other improvements or maintenance to homes (such as new paint colors and roof colors) and enforcing all of the other covenants (such as those dealing with overnight parking on the street, parking of RVs and boats, requiring maintenance on homes, and maintaining landscaping.)

At this time the DRC is inactive with no sitting members.

The DRC has the power to enforce the covenants and Design Standards in the same way as any individual homeowner. The DRC also has additional enforcement powers (which homeowners do not have) which include:

1. the power to inspect a homeowner's property for compliance with the Covenants and Design Standards,
2. the power to deliver notice of a breach of the Covenants and Design Standards,
3. the power to take action to correct the breach by making repairs or performing maintenance to the property.

The DRC will not be liable for trespass if it enters onto a person's property for these purposes. If the DRC performs maintenance on a person's property, it shall present the homeowner with a bill for the costs. If the homeowner does not pay the bill within 30 days the DRC may file a lien against the homeowner's property, including any attorney's fees and costs. If the DRC has to foreclose on the lien, its attorney's fees and cost for the foreclosure will also be added to the amount of the lien.

There currently is no one serving on the Design Review Committee. The original Design Review Committee appointed by Elite Properties, Inc. consisted of: Walter J. Connolly, Don Conley, and Ed Adkins. Walter J. Connolly sold his home in the community in 2002. Don Conley resigned in 2001. We believe that Ed Adkins is no longer serving, but have not confirmed that with him at this time.

At this time the DRC is inactive with no sitting members.

It appears that a Design Review Committee could be elected by a simple majority of the homeowners in the subdivision. It is unclear what legal process would be needed. For example, we do not know if all the homeowners voting for the committee would need to sign documents that would be recorded with the County or if those signatures would also need to be notarized.

If a group of homeowners decides to organize an election of the DRC, they should obtain a written legal opinion as to the process that must be followed.

Even if there is no Design Review Committee in place who can preapprove your improvement, any homeowner who thinks that you have violated the covenants has the power to take action to force you to comply with them. Additionally, the homeowners, by majority vote, could elect a Design Review Committee to enforce the covenants. The Design Review Committee could force you to comply with the covenants, including the removal of nonconforming improvements.

The governing documents provide for covenants and a Design Review Committee, but not an HOA. There is not an HOA in the Heights at Jackson Creek. There was an attempt to modify the covenants and create an HOA in 2003, which was not approved after a vote by the homeowners. There is a current (2009) attempt to create a 'voluntary' HOA. Please see below for more specific questions.

Currently, there is a movement to create an HOA as well. Robert Cottrell has been involved since this summer organizing people to create an HOA. He has stated that it would be a voluntary HOA without annual dues. However in a flyer he handed out (PDF) (I do not know the exact date we received it), he implied that once the HOA is "resurrected" all homeowners will be affected by it and all will be members. On September 22, 2009, Cottrell filed a nonprofit corporation with the Colorado Secretary of State called The Heights At Jackson Creek Home Owners Association. The Articles of Incorporation filed with the Colorado Secretary of State state that all owners in the subdivision are members of the corporation. He used an address for Pak Mail, 1042 W Baptist Road, #129.

He has stated that there will be a general meeting of homeowners at some point in the future to elect a Board of Directors and a Design Review Committee. He collected email addresses from people in the neighborhood and has sent several emails. One of his emails listed http://www.hjchoa.org as the website for the HOA. The content of that website was taken down on or about 10/28/09.

We do not believe anyone is bound by it and think that you would have difficulty finding an attorney who would say that you are.

On September 24, 2009, Robert Cottrell recorded a document (PDF) with the El Paso County Clerk and Recorders office claiming that an HOA was in existence and that title companies were instructed to collect $150 when property in the subdivision is transferred.

On November 2, 2009, Robert Cottrell recorded another document (PDF) that purports to cancel the 9/22/09 letter.

It is our belief, based on the 11/2/09 rescission and other documents, that Robert Cottrell now agrees that he had no authority to collect this fee.

We are still researching this question. However at this point both documents show up in the chain of title for each home in the subdivision. Since the second document rescinding the transfer fee was filed, it is unlikely that that title companies will collect the transfer fee. We still do not know if these documents will create a legal uncertainty sufficient to give any potential homebuyer the right to legitimately right to break his or her contract. We are concerned about how each title company will treat these documents when they issue title insurance policies. Title insurance is issued when you buy or refinance a house.

The documents can not be removed or 'unrecorded'. They will always come up when title to your house is searched by a title company or potential buyer.

We are still researching the best way to void these documents so that they do not continue to cloud title to the homes in this area.

As far as we can determine, the 11/2/09 rescission document is not legally sufficient to nullify the 9/24/09 transfer fee document. It is our understanding that it will take a court order (even if uncontested by Robert Cottrell) to fully rescind this document and remove any harm that has been done to the neighborhood.

A person who takes an action affecting title to real estate, without the legal authority to do so, is liable for the attorney's fees and costs to undo that action. If specific damages have been incurred, the person could be liable for those as well. Damages could include the inability to refinance, delay in refinancing, or a sale falling through because of the recorded document. There could be other types of damages as well.

We do not know of anyone who has incurred any specific damages at this point. If we take action, we would only seek to have a court nullify the documents and enter a judgment for our costs and attorney's fees to do so. We do not feel that we can sit back and allow someone to infringe on our property rights. We do not stand to gain anything from taking action, and in fact it would cost us time and energy which can't be recovered.

Covenants are restrictions on the use or transfer of real property. They may limit how the property can be used, what can be built on it, etc. They are typically drafted by the developer of a subdivision and apply to all of the land in that subdivision. Restrictions can give a development a more standard appearance by regulating the sizes of houses, setbacks, type of construction, etc. Covenants can cover many different types of activities as well such as the use of the property. Any person buying real property should understand what covenants and restrictions affect the property.

Covenants typically 'run with the land'. That means that if your property is subject to covenants, when you sell your home, the new owner is automatically subject to the covenants. A homeowner in a subdivision can take legal action to enforce the covenants if another homeowner in the subdivision is not complying with them. Some subdivisions also have homeowners associations that have the power to enforce covenants.

A Homeowners Association (HOA) is a legal entity, typically created in conjunction with the covenants, that has the power to enforce the covenants, possibility assess annual dues from homeowners, and possibly levy fines for noncompliance with covenants. An HOA's powers, duties and responsibilities are created by the covenants and by state law. State law may limit the power of HOAs to take certain types of actions, even if the covenants permit it.

HOAs are also typically responsible for managing and maintaining any common areas in the development. If the development is a condo or townhome association, the HOA would likely provide trash services, insurance on the buildings (but not the contents), etc.

No, covenants can exist and be binding even if there is no HOA. The covenants themselves may provide for a method of enforcement such as an Architectural Committee or Design Review Committee. In addition, any homeowner in the subdivision has the right to enforce the covenants against other owners.

Covenants are limited to a particular development. The municipality the development is in may also have certain requirements that all homeowners within the municipality must abide by. There may be an overlap between them.

The municipality can only enforce its rules and regulations, not the covenants of a particular subdivision.