     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                         September 26, 2019

                               2019COA148

No. 18CA0977, FD Interests v Fairways at Buffalo Run — Real
Property — Colorado Common Interest Ownership Act —
Common Interest Communities — Creation, Alteration, and
Termination

     A division of the court of appeals considers whether a

residential development’s common interest community declaration

excluded the undeveloped portions of the property from the

community until they were specifically annexed through recordation

of supplemental plats and declarations. The division also considers

whether errors in the chain of title for the property and the units

built on it warranted reformation of the declaration.

     The division concludes that the declaration encumbered the

entire property, and that this interpretation renders inconsequential

any concerns created by discrepancies between the statements in

the declaration and the actual chain of title. Thus, although the
trial court erred by reforming the deed, the error was harmless, and

the division affirms.
COLORADO COURT OF APPEALS                                      2019COA148


Court of Appeals No. 18CA0977
Adams County District Court No. 16CV31316
Honorable Emily E. Anderson, Judge


FD Interests, LLC,

Plaintiff-Appellant,

and

Fairways Builders, Inc., Buffalo Run Fairways, LLC, and Fairways Homes, LLC,

Third-Party Defendants-Appellants,

v.

Fairways at Buffalo Run Homeowners Association, Inc.,

Defendant-Appellee,

and

William D. Monhollin Trust, the Nancy L. Monhollin Trust, Janice Van Gundy,
and Jennifer Van Gundy,

Third-Party Defendants-Appellees.


                        JUDGMENT AFFIRMED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division I
                           Opinion by JUDGE GROVE
                       Taubman and Hawthorne, JJ., concur

                         Announced September 26, 2019


Hatch Ray Olsen Conant LLC, Robert W. Hatch, II, Christopher J. Conant,
Erica G. Behm, Denver, Colorado, for Plaintiff-Appellant and Third-Party
Defendants-Appellants
Altitude Community Law, P.C., William H. Short, Lakewood, Colorado; Fowler,
Schimberg, Flanagan & McLetchie, P.C., Andrew R. McLetchie, Eden R.
Rolland, Golden, Colorado, for Defendant-Appellee

The Sweetser Law Firm, P.C., Daniel A. Sweetser, Denver, Colorado, for Third-
Party Defendants-Appellees
¶1    In this dispute concerning the interpretation and reformation

 of a residential development’s common interest community

 declaration, appellants, FD Interests, LLC (FDI), Fairways Builders,

 Inc. (Builders), Buffalo Run Fairways, LLC (BRF), and Fairways

 Homes, LLC (Homes) (collectively, the Developer Entities), appeal

 the trial court’s judgment in favor of appellees, Fairways at Buffalo

 Run Homeowners Association, Inc. (the HOA), and unit owners the

 William D. Monhollin Trust, the Nancy L. Monhollin Trust, Janice

 Van Gundy, and Jennifer Van Gundy.

¶2    The trial court concluded that the entire property, including

 both the developed and undeveloped portions of The Fairways at

 Buffalo Run (the Property), was subject to the terms of the legal

 document that created the HOA — the “Amended and Restated

 Declaration of Covenants, Conditions and Restrictions for Fairways

 at Buffalo Run Homeowners Association, Inc.” (the CCR). The trial

 court found that the “parties d[id] not dispute the fact that the

 [CCR] was intended to govern the common interest community now

 known as The Fairways at Buffalo Run.” But after identifying

 inconsistencies in the Property’s chain of title, the court reformed


                                   1
 the CCR by adding BRF to the CCR’s signature line, because

 despite its sole ownership of the Property at the time, it had not

 executed the CCR. The court reasoned that this reformation would

 cure the title defects.

¶3    We conclude that the trial court accurately determined that

 the CCR encompassed the entire Property when the community was

 established. This resolved the title concerns that the HOA and unit

 owners raised and made it unnecessary for the trial court to rule in

 equity to reform the CCR. Nonetheless, because the trial court’s

 erroneous exercise of its equitable powers did not affect any party’s

 substantial rights, we conclude that this error was harmless and

 therefore affirm.

                           I.   Background

¶4    This case requires us to consider two main issues. First, did

 the CCR encompass the entire Property from the outset or did it

 exclude the undeveloped portions of the Property from the

 community until they were specifically annexed into the

 development through recordation of supplemental plats and

 declarations? Second, do the errors in the chain of title for the


                                   2
 Property and the units built on it warrant reformation of the CCR?

 We address those questions after outlining this matter’s complex

 factual and procedural background.

                      A.    Factual Background

¶5    In October 2005, FDI and Fairways Land, LLC purchased the

 Property, twelve and one-half acres of real property adjacent to the

 Buffalo Run Golf Course in Commerce City. The Property’s legal

 description was “Lot 1, Block 1, The Villages at Buffalo Run East,

 Filing No. 3.” The purchase transaction culminated in the October

 13, 2005, recordation of a special warranty deed that was dated

 October 6, 2005.

        1.   Pre-Development and the Onset of Title Problems

¶6    Acquiring the land was the first step in developer Robin J.

 Harding’s plan to create and operate the Property, a community

 designed for construction of up to sixty-nine patio homes. Harding

 formed several entities to carry out the project. He owned or

 ultimately managed those entities — including FDI, Builders, BRF,

 and Homes — and he signed documents on their behalf over the

 course of the Property’s development.


                                   3
¶7     On October 31, 2005, BRF recorded a final plat for the

  Property, which encompassed all twelve and one-half acres and

  stated that BRF was the owner. BRF, however, did not own the

  Property at that time. FDI and Fairways Land did.

¶8     On November 2, 2005, FDI and Fairways Land conveyed the

  Property to BRF by way of a special warranty deed.

¶9     On December 20, 2005, FDI, Fairways Land, and BRF

  recorded a plat amendment stating that they were the owners of the

  Property. The only difference between the final plat and the plat

  amendment was that the plat amendment listed FDI and Fairways

  Land as the Property owners along with the record owner, BRF.

  But FDI and Fairways Land had transferred their ownership

  interest in the Property to BRF on November 2, 2005.

¶ 10   On January 24, 2006, Builders, as the declarant, recorded the

  CCR.1 Builders did not own the Property — BRF did — yet the first

  sentence of Section 1.1 stated that “Declarant owns those certain



  1 Although the CCR is titled the “Amended and Restated Declaration
  of Covenants, Conditions and Restrictions for Fairways at Buffalo
  Run Homeowners Association, Inc.,” nothing in the record shows
  that any party identified a recorded declaration that was recorded
  before this one.
                                   4
  parcels of land . . . more particularly described in Exhibit A . . . (the

  ‘Real Property’).” The property listed on Exhibit A was “The

  Fairways at Buffalo Run,” which the parties agree covered the

  entirety of the Property.

¶ 11      Section 1.1 also stated that the declarant “wishe[d] to create a

  common interest community . . . for Fairways [a]t Buffalo Run

  Homeowners Association, Inc.,” and that it would “develop the

  Property . . . as a Planned Community . . . in accordance with the

  terms and provisions of the Colorado Common Interest Ownership

  Act.”

           2.   Construction Begins and Title Problems Continue

¶ 12      Development of the property began after Builders recorded the

  CCR. From June 2006 through December 2009, Builders

  constructed fifteen residential units situated in five buildings of

  three units each, on parcels of approximately 12,000 square feet.

  Before construction, BRF would convey the parcel to Builders. For

  parcels developed after December 1, 2006, when BRF conveyed its

  interest in the Property to FDI, FDI would convey the parcel to

  Builders.


                                       5
¶ 13    The pattern established for development and construction of

  the five buildings was to (1) create a metes and bounds description

  of each parcel slated for construction; (2) in accordance with the

  CCR, on the completion of each parcel’s development, complete and

  record a supplemental declaration; and (3) record a supplemental

  plat depicting the three constructed units. Consistent with the

  CCR, through these actions the Developer Entities annexed each

  newly built unit into the community.

¶ 14    Builders sold the first unit on September 7, 2006. After that

  sale, under the terms of the CCR, the HOA took sole responsibility

  for and paid all costs associated with the upkeep and maintenance

  of the entire Property. FDI continued to own the undeveloped

  portions of the Property, however, so the Developer Entities paid the

  real property taxes assessed against those portions.

   3.    Construction Pauses and the Development Deadline Expires

¶ 15    As required by section 38-33.3-205(1)(h), C.R.S. 2019, the

  CCR set a deadline for development activity. In pertinent part,

  Article 6 of the CCR, titled “Declarant’s Rights and Reservations,”

  permitted the declarant to continue to develop the Property until


                                    6
  “the later of (i) the date which is seven (7) years following the

  recordation of this CCR or (ii) the date which is five (5) years

  following the recordation of the most recently recorded CCR[.]” In

  essence, once two years had passed, the Developer Entities’

  development rights would not expire unless there was a gap of more

  than five years between construction projects.

¶ 16   That, however, is exactly what happened. Construction stalled

  during the Great Recession, and on December 31, 2009, the

  Developer Entities recorded their most recent supplemental

  declaration, thereby starting the five-year clock on the development

  deadline. By the time the Developer Entities were set to resume

  construction, the time limit had expired. Thus, in January 2016,

  after FDI conveyed a sixth 12,000-square-foot parcel to Homes, and

  Homes attempted to develop that parcel, the HOA blocked it from

  entering the Property.

                           B.   Procedural History

¶ 17   After being denied access to the Property for further

  development, the Developer Entities sued the HOA in August 2016.




                                      7
  Numerous counterclaims, third-party complaints, and cross-claims

  followed. In brief, the Developer Entities’ complaint sought:

          • a finding of private nuisance, an injunction ensuring

            access to the Property, and ejectment against the HOA;

          • a declaratory judgment that FDI and Homes owned the

            undeveloped portion of the Property; and

          • in the event that the request for declaratory judgment

            failed, the imposition of an equitable lien and recovery for

            unjust enrichment in the form of real property taxes paid

            for the Property by FDI.

¶ 18   Counterclaims by the HOA and the unit owners, who were all

  members of the HOA and appeared to be aligned, requested:

          • a declaratory judgment seeking a determination of the

            ownership of the undeveloped portion of the Property by

            the HOA against FDI, Fairways Land, BRF, Homes, FDI’s

            lenders, and the unit owners; and

          • reformation of the CCR and other governing documents

            for the common interest community to cure the problems

            outlined above.

                                    8
¶ 19   In a written order issued after a five-day bench trial, the trial

  court ruled that

         • the entirety of the Property was encumbered by and

            subject to the provisions of the CCR;

         • because the Developer Entities’ development rights to the

            Property had expired, they could not develop the Property

            further except on terms, conditions, and limitations

            imposed by the HOA;

         • the CCR should be reformed to add BRF, the Property

            owner when the CCR was recorded, as declarant; and

         • the Property’s roads were to be conveyed by FDI to the

            HOA.

¶ 20   The portion of the trial court’s order conveying the roads to the

  HOA was entered together with a finding that the land beneath the

  units and surrounding the buildings, including the driveways and

  walkways leading up to the homes, was not properly designated on

  the supplemental plats as “General Common Elements” and

  “Limited Common Elements.” The court concluded that, without

  such designations, the unit owners had no easement for the land

                                     9
  underneath and surrounding their units, effectively making them

  trespassers each time they entered or exited their homes. This

  created problems for the unit owners and ran counter to the CCR’s

  intent.

                     II.   Interpretation of the CCR

¶ 21   The Developer Entities argue that the undeveloped portions of

  the Property were never annexed into the common interest

  community and are therefore not subject to the CCR. Thus, they

  contend the trial court incorrectly interpreted the CCR. We

  disagree.

               A.    Preservation and Standard of Review

¶ 22   The parties agree that the Developer Entities’ contentions were

  preserved.

¶ 23   We review de novo the interpretation of covenants and other

  recorded instruments. Ryan Ranch Cmty. Ass’n v. Kelley, 2016 CO

  65, ¶ 24. “In doing so, we give words and phrases their common

  meanings and will enforce such documents as written if their

  meaning is clear.” Pulte Home Corp. v. Countryside Cmty. Ass’n,

  2016 CO 64, ¶ 23. Like contracts, we construe covenants and other

  recorded instruments “in [their] entirety . . . [,] seeking to harmonize
                                    10
  and to give effect to all provisions so that none will be rendered

  meaningless.” Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d

  1310, 1313 (Colo. 1984). To that end, we remain wary of “viewing

  clauses or phrases in isolation.” U.S. Fid. & Guar. Co. v. Budget

  Rent-A-Car Sys., Inc., 842 P.2d 208, 213 (Colo. 1992). And where

  the terms are ambiguous, they must be strictly construed against

  the drafter. Id. at 211.

                             B.   Applicable Law

¶ 24   The Colorado Common Interest Ownership Act (CCIOA)

  establishes a uniform framework for the creation and operation of

  common interest communities. §§ 38-33.3-101 to -402, C.R.S.

  2019. A “common interest community” is “real estate described in a

  declaration with respect to which a person, by virtue of such

  person’s ownership of a unit, is obligated to pay for real estate

  taxes, insurance premiums, maintenance, or improvement of other

  real estate described in a declaration.” § 38-33.3-103(8), C.R.S.

  2019. A common interest community is created “only by recording

  a declaration executed in the same manner as a deed . . . . No

  common interest community is created until the plat or map for the


                                     11
  common interest community is recorded.” § 38-33.3-201(1), C.R.S.

  2019.

¶ 25   A declaration is defined as “any recorded instruments however

  denominated, that create a common interest community.” § 38-

  33.3-103(13). Declarations must contain, at a minimum, the

  components listed in section 38-33.3-205(1), one of which is a

  “legally sufficient description of the real estate included in the

  common interest community.” § 38-33.3-205(1)(c); see also

  Douglas Scott MacGregor, Colorado Community Association Law:

  Condominiums, Cooperatives, and Homeowners Associations § 3.3,

  at 160 (2d ed. 2019).

                             C.    Discussion

¶ 26   The Developer Entities maintain that the CCR “is valid and

  has created a Community,” but contend that Section 1.1

  establishes that the undeveloped portions of the Property were not

  included in the community until they were affirmatively annexed.

  Thus, the Developer Entities argue, the vast majority of the Property

  is not subject to the CCR, including the time limit that it




                                     12
  established for development. 2 As the Developer Entities’ expert

  asserted, “[t]he project was formulated such that property would

  not be part of the Fairways Buffalo Run Common Interest

  Community until annexed into the Community.”

¶ 27   The HOA disagrees, arguing instead that once the first unit

  was sold and contemporaneously annexed, the community included

  the Property in its entirety. And because construction paused for

  more than five years, the HOA contends, the CCR’s deadline for

  development expired before the Developer Entities attempted to

  begin building again.

¶ 28   The Developer Entities’ argument relies primarily on Section

  1.1 of the CCR, which states: “When annexed into the Common

  Interest Community pursuant to the terms herein, the Real

  Property, the Annexable Units, along with the Association Property

  shall be collectively referred to in this [CCR] as the ‘Property.’” The



  2 The parties did not dispute in the trial court that under the CCR,
  the development rights for whatever real property is subject to it
  had expired. Although our holding that the entirety of the Property
  is subject to the CCR necessarily means that the development
  rights that have expired include those for the undeveloped portions
  of the Property, the parties do not dispute that those undeveloped
  portions are still owned by FDI. See § 38-33.3-210(5), C.R.S. 2019.
                                     13
  Developer Entities argue that the phrase “when annexed”

  establishes that the CCR “contemplates the annexation of land into

  the Community over time,” rather than designating the entire

  Property as the community all at once.

¶ 29   This argument, however, is undermined by Section 2.16 of the

  CCR, which defines “Common Interest Community” as “the Real

  Property which is described on Exhibit A attached hereto, the Units

  and the Buildings and all other real property which is made subject

  to the terms and provisions of this CCR,” and Section 2.42, which

  defines “Property” as “the real property more particularly described

  on Exhibit A attached hereto.” Designated on Exhibit A, titled

  “Legal Description of Property,” is “The Fairways at Buffalo Run” —

  i.e., all the real property at issue in this case. In other words,

  Exhibit A, which delineates the boundaries of the community,

  states that the community, once created, includes the entire

  Property.

¶ 30   We are not persuaded that this interpretation renders

  meaningless the phrase “when annexed” in Section 1.1. The

  sentence in which that phrase appears refers not only to “the Real


                                     14
  Property” (defined in Exhibit A as the entire Property), but also to

  “Annexable Units” and “the Association Property.” Section 6.8,

  titled “Annexation of Additional Properties,” establishes the

  procedures for annexation of buildings and units, which the

  Developer Entities followed in connection with the construction on

  each parcel. Yet that same section provides no mechanism for the

  annexation of land.

¶ 31   Instead, Section 6.8 provides that annexation of “Annexable

  Units” and “Annexable Buildings” requires the recording of a

  supplemental declaration and a supplemental plat. The

  supplemental declaration, “generally in the form attached [to the

  CCR] . . . as Exhibit D,” appears as a model form with the stated

  purpose to “annex certain New Buildings and New Units into the

  [CCR] and to include certain New Buildings and New Units within

  the Common Interest Community, as defined in the [CCR].”

  Similarly, in the definitions section, “supplemental plat” is

  described as “any land survey plat . . . recorded . . . for the purpose

  of annexing the real property described thereon to the Common

  Interest Community.” That definition is then refined in Section 6.8


                                    15
  to mean any plat or map that depicts “the Annexable Building and

  the Annexable Units therein to be annexed to the Common Interest

  Community.” In short, these annexation procedures and recorded

  supplements address only the annexation of buildings and units —

  not land.

¶ 32   In light of these provisions, the procedures followed by the

  Developer Entities in connection with each construction project

  make sense. In contrast to the Property, which Exhibit A makes

  clear was included in the community at its inception, the Developer

  Entities were required to take affirmative action to incorporate

  subsequent construction — the buildings and units — into the

  community. That is precisely what they did when they prepared

  and recorded supplemental plats and supplemental declarations in

  connection with each parcel of three constructed units. But when

  the Developer Entities did so, by virtue of the CCR’s prescription,

  they annexed only the buildings and units, and not the land




                                    16
  underlying those projects — an expected result if that land was

  already part of the community. 3

¶ 33   Interpreting the CCR as encompassing the entire Property

  from the outset supports and harmonizes the remaining provisions

  of the CCR concerning annexation of buildings and units and helps

  ensure secure, marketable title to the unit owners, free from

  technical defects and “clerical errors.”

¶ 34   In any event, even if the terms of Section 1.1 and the

  provisions above conflict, we resolve that conflict by interpreting

  those terms against the drafter, the Developer Entities. See U.S.

  Fid. & Guar. Co., 842 P.2d at 213. Taking this approach also




 3 In contrast, if the land underneath and immediately surrounding
  each construction project had to be annexed in order to become
  part of the community, then the Developer Entities’ failure to do so
  rendered the unit owners trespassers anytime they accessed their
  units. This is precisely the sort of absurd result that we strive to
  avoid. See Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789,
  793 (Colo. App. 2001) (“[A] contract should never be interpreted to
  yield an absurd result.”), abrogated on other grounds by Ingold v.
  AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116 (Colo. 2007); see
  also Douglas Scott MacGregor, Colorado Community Association
  Law: Condominiums, Cooperatives, and Homeowners Associations
  § 2.10, at 106 (2d ed. 2019).

                                     17
generally 4 comports with the expectations and conduct of the

parties over time. For example, Harding (the Developer Entities’

principal), who ran the HOA for several years as the project got up

and running, acknowledged that dues paid by the HOA members

were not devoted only to those areas that the Developer Entities had

affirmatively annexed. Instead, they went to maintenance of the

“common area of the entire project.” In another instance, Harding,

acting on behalf of the Developer Entities-controlled HOA, executed

an easement and maintenance agreement stating that the HOA

owned “the roads, walkways, open space, and other common areas”

shown on the December 20, 2005, plat amendment.




4 We acknowledge the Developer Entities paid property taxes on the
undeveloped portions of the Property. When weighing those
payments against the parties’ conduct and the trial court’s
conclusion that FDI owns the undeveloped portions of the Property,
however, the court must only have concluded that the Developer
Entities’ assumption of that tax burden was not dispositive. We will
not substitute our judgment for that of the trial court. Accordingly,
we do not disturb its consideration and resolution of the conflicting
evidence presented on this point. See Rocky Mountain Metro.
Recreation Dist. v. Hix, 136 Colo. 316, 319, 316 P.2d 1041, 1043
(1957).

                                 18
¶ 35   Because they are distinguishable, we likewise find

  unconvincing the Developer Entities’ reliance on Pulte and Ryan

  Ranch, which they contend compel the conclusion that the

  undeveloped portions of the Property remained outside the common

  interest community until annexed, and thus were not subject to the

  CCR. In Pulte, the developer, Pulte Home Corporation, sought to

  develop a residential common interest community on land that it

  did not own but that it had an option to purchase. Pulte, ¶ 6. The

  declaration prepared and recorded by Pulte defined the

  “community” created by the declaration as the “real property

  described on Exhibit A or which becomes subject to [the

  declaration].” Id. at ¶ 7. Exhibit A to the declaration, however,

  listed no real property. Rather, it stated “NONE AT THE TIME OF

  RECORDING THIS [DECLARATION].” Id. at ¶ 29. Exhibit D to the

  declaration “contain[ed] a metes and bounds description of

  ‘Annexable Property,’” and other parts of the declaration outlined

  procedures by which Pulte could annex and incorporate it into the

  community. Id. at ¶ 8. Under these circumstances, the supreme

  court held that the undeveloped portions of Pulte’s property were


                                    19
  incorporated into the community only after they were formally

  annexed (thereby making the developer responsible for monetary

  assessments). Id. at ¶ 37.

¶ 36   The declaration in Ryan Ranch, ¶ 10, worked the same general

  way. It “defined the ‘Community’ as ‘real property described in

  Exhibit A . . . or which becomes subject to’” the declaration. Id. In

  contrast to the Exhibit A in Pulte, however, Ryan Ranch’s Exhibit A

  identified some real property while excluding the land that was at

  issue in the lawsuit — the parcel that the plaintiff community

  argued was subject to the declaration and therefore encumbered

  with assessments imposed by the homeowners association. Id. As

  in Pulte, Exhibit D in Ryan Ranch included a “metes and bounds

  description” of annexable property. Id. at ¶ 11.

¶ 37   The Developer Entities assert that because they used the

  “same development scheme” as the developers in Pulte and Ryan

  Ranch, this case is “materially indistinguishable” from the

  precedent set by those cases. But this argument overlooks the

  critical difference in the exhibits that the developers in Pulte, Ryan

  Ranch, and this case attached to their respective declarations. In


                                    20
  each case, Exhibit A described the extent of the community at its

  inception. As we have already noted, in Pulte that description

  included no land at all. Put another way, when it was recorded, the

  developer’s declaration attached no obligations to any real property.

  In Ryan Ranch, the Exhibit A identified some real property, but not

  the parcel that prompted the lawsuit. In contrast, in this case,

  Exhibit A identified the entire Property as belonging to the

  community from the beginning. 5

¶ 38   Exhibit D to the declarations in Pulte and Ryan Ranch was

  likewise a virtual mirror image of Exhibit D to the CCR in this case.




  5 While the issue of when the common interest community was
  formed is not decisive here as it was in Pulte, we note the trial
  court’s finding that it “[came] into existence” when the first unit was
  sold. None of the parties challenge that finding. And because we
  conclude and the parties do not dispute that the community was
  formed in accordance with CCIOA’s section 38-33.3-201, C.R.S.
  2019, the precise moment when that occurred is not of
  consequence to our determination that the CCR encumbered all of
  the Property described in Exhibit A. Nevertheless, we agree with
  the trial court that the common interest community was created
  when the first unit was sold. The sale subordinated that unit to the
  CCR and obligated its owner “to pay for real estate taxes, insurance
  premiums, maintenance, or improvement of other real estate
  described in a declaration.” § 38-33.3-103(8), C.R.S. 2019; see also
  Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶¶ 44,
  48.
                                    21
  Pulte and Ryan Ranch precisely described annexable real property,

  and the declarations in those cases “outline[d] procedures by which

  the property described in Exhibit D could be subjected to the

  [declaration’s] terms and incorporated into the community.” Pulte,

  ¶ 8; see also Ryan Ranch, ¶ 11. But in this case, Exhibit D (which

  served the same purpose) contained no metes and bounds

  description of annexable real property. It was left blank except for

  reference to an attached model supplemental declaration form. And

  the CCR itself did not outline any procedures for annexing any

  additional real property into the community.

¶ 39   Put simply, in Pulte and Ryan Ranch, the declarations

  excluded either all or some of the property under development from

  the community until the developer specifically annexed it. Here, by

  listing the entire Property on Exhibit A, the CCR did just the

  opposite. We therefore conclude that Pulte and Ryan Ranch are not

  controlling in this case and, as a result, we agree with the trial

  court’s finding that the entirety of the Property was encumbered by

  the CCR at the time the community was formed. See Buick v.

  Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860,


                                    22
  862 (Colo. 2011) (“[We] will enforce a covenant as written that is

  clear on its face.”). 6

¶ 40    We also conclude, as stated above, that this result comports

  with CCIOA’s requirements for the creation of a common interest

  community. Here, the CCR set forth the HOA members’ “obligation

  to pay for various expenses associated with common property,” and

  it “attach[ed] that obligation to individually owned property.” Pulte,

  ¶ 44. By its terms, therefore, the CCR encumbered the real

  property listed in Exhibit A, i.e., the entire Property, including both

  the developed and undeveloped portions, and the Developer

  Entities’ implementation of the CCR does not suggest otherwise. Cf.

  id. at ¶¶ 70-71 (Coats, J., concurring in part and concurring in the

  judgment).




  6 We note that this conclusion also renders the entirety of the
  Property — other than the units — “Common Elements,” defined in
  part in Sections 2.14 and 1.4(b) of the CCR as “all of the Common
  Interest Community” including “all of the land, landscaping,
  driveways, sidewalks, walkways, parking areas, and easements
  which are a part of the Common Interest Community.” This
  therefore resolves the concern that the unit owners commit trespass
  each time they access their units.
                                    23
                      III.   Reformation of the CCR

¶ 41   The Developer Entities contend that the trial court “was not

  empowered” to reform the CCR by adding BRF as a signatory.

  Because our interpretation of the CCR resolves any concerns

  created by the discrepancies between the statements in the CCR

  and the actual chain of title, we hold reformation was unnecessary.

               A.   Preservation and Standard of Review

¶ 42   The parties agree that the Developer Entities’ contentions were

  preserved.

¶ 43   Whether the district court has applied the correct legal

  standard in determining the availability of a particular equitable

  remedy is reviewed de novo. See Redd Iron, Inc. v. Int’l Sales &

  Servs. Corp., 200 P.3d 1133, 1136 (Colo. App. 2008). But the power

  to determine the components of such a remedy is within the court’s

  discretion. Beren v. Beren, 2015 CO 29, ¶ 12.

¶ 44   To justify reformation, there must be clear and unequivocal

  evidence showing that it is the appropriate remedy under the

  circumstances. Md. Cas. Co. v. Buckeye Gas Prods. Co., 797 P.2d

  11 (Colo. 1990). If the evidence meets this standard of proof,


                                    24
  reformation may, and should be, ordered. Hooper v. Capitol Life Ins.

  Co., 92 Colo. 376, 20 P.2d 1011 (1933). CCIOA directs courts to

  administer remedies “liberally,” § 38-33.3-114(1), C.R.S. 2019, and

  permits them to apply the principles of both law and equity to

  achieve a just and conscionable result. §§ 38-33.3-108, -112(1),

  C.R.S. 2019; see also Arrabelle at Vail Square Residential Condo.

  Ass’n v. Arrabelle at Vail Square LLC, 2016 COA 123, ¶¶ 55-56.

¶ 45   Because the Developer Entities challenge the propriety of

  reformation as the appropriate equitable remedy for Builders’

  incorrect representation that it was the owner of the Property when

  it executed the CCR, we review de novo the trial court’s

  determination that reformation was necessary.

                            B.    Discussion

¶ 46   The Developer Entities argue that equity may not be employed

  to cure defects in a declaration so as to conform with the parties’

  intent. They also contend the trial court’s premise for reformation




                                    25
  — that the CCR was a “wild deed” — was erroneous. We need only

  reach the first of these contentions. 7

¶ 47   As we have already noted, Section 1.1 of the CCR affirmatively

  stated that Builders, the declarant, owned the Property, despite the

  fact that BRF did. This discrepancy and BRF’s absence from the

  CCR’s signature line, the trial court found, “created a significant

  title problem,” which required a remedy to comport with Colorado’s

  declared policy regarding titles:

             It is the purpose and intention of this article
             . . . to render titles to real property and every
             interest therein more secure and marketable,
             and it is declared to be the policy in this state
             that this article . . . shall be liberally construed
             with the end in view of rendering such titles
             absolute and free from technical defects so
             that subsequent purchasers and
             encumbrancers by way of mortgage, judgment,
             or otherwise may rely on the record title . . . so
             that the record title of the party in possession
             is sustained and not defeated by technical or
             strict constructions.




  7 The Developer Entities also argue that “it was error for the [court]
  to use ‘equity’ to ‘fix’ the [CCR] to make it encumber all of the
  Property.” As we discussed in Part II.C, however, the CCR, by its
  own terms, “encumbers all of the Property.” Accurate interpretation
  of the CCR renders it unnecessary to reform the CCR to reflect the
  intent of the parties.
                                      26
  § 38-34-101, C.R.S. 2019.

¶ 48   An insubstantial failure of a declaration to comply with

  CCIOA, however, does not render title unmarketable or otherwise

  affect it. § 38-33.3-203(1), C.R.S. 2019. Given our conclusion that

  the CCR’s Exhibit A encumbers the entire Property, along with the

  parties’ general historical compliance with the CCR’s requirements,

  we conclude that the inaccuracy in Section 1.1 of the CCR amounts

  to an insubstantial failure, and thus does not affect the

  marketability and security of the titles of the individual unit owners

  or the Property as a whole. This result aligns with our

  determination that the community was created when the first unit

  was sold, by which time the inaccuracies in the final plat had been

  remedied by recording the plat amendment, along with the CCIOA-

  compliant CCR. Nor does BRF’s absence from the signature line of

  the CCR affect the access rights of individual unit owners. Indeed,

  once the CCR is properly understood as encumbering the entirety of

  the Property, that makes the land underneath and surrounding

  individual units “Common Elements.” And this dispels any concern

  that a unit owner would be trespassing by stepping outside the


                                    27
  house because, under Section 4.1 of the CCR, “all Members may

  use Common Elements.”

¶ 49   Because the trial court’s interpretation of the CCR obviated

  the need for an equitable remedy, the trial court erred by acting in

  equity and adding BRF to the signature line of the CCR. See Smith

  v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1193 (Colo. 2010)

  (holding that court should not resort to equity when there is a plain,

  speedy, and adequate remedy at law); In re Marriage of Hall, 971

  P.2d 677, 679 (Colo. App. 1998) (“Equitable relief is available only

  when the law affords none.”). This error, however, was harmless

  because it did not affect the substantial rights of the parties. See

  C.A.R. 35(c); see Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24

  (“[A]n error affects a substantial right only if ‘it can be said with fair

  assurance that the error substantially influenced the outcome of

  the case or impaired the basic fairness of the trial itself.’” (quoting

  Bly v. Story, 241 P.3d 529, 535 (Colo. 2010))) (emphasis omitted).

¶ 50   Accordingly, because the trial court’s accurate interpretation

  of the CCR resolved any concerns created by the absence of BRF’s




                                      28
  signature, reformation of the CCR was unnecessary, but a harmless

  error. 8

                  IV.   Conveyance of the Roads to the HOA

¶ 51      Next, the Developer Entities argue that the trial court erred by

  ordering FDI to convey the Property’s roads to the HOA.

  Specifically, they contend that the Property’s roads are public roads

  under the CCR. We disagree.

                  A.    Preservation and Standard of Review

¶ 52      The parties agree, as do we, that the Developer Entities

  preserved this argument. Again, we review the interpretation of

  covenants and other recorded instruments de novo. Ryan Ranch,

  ¶ 24.

                               B.   Discussion

¶ 53      The Developer Entities contend that the Property’s roads “are

  to be owned by FDI and dedicated to the public for use,” and that

  the CCR granted the HOA an easement over the roads. To support



  8 We acknowledge the trial court resolved other issues through
  reformation that are not contested on appeal. While we hold that
  adding BRF as signatory to the CCR was unnecessary, we do not
  question the court’s use of reformation to remedy those separate
  issues.
                                      29
  their argument, the Developer Entities point to a dedication on the

  final plat recorded October 31, 2005, which contains language

  granting Commerce City easements for public use. On the second

  page of the plat, the roads within the subdivision are depicted, and

  at least one of the roads is labeled a “Public Access Easement.”

¶ 54   To create public rights in a road, however, the governing body

  must accept the dedication. § 43-2-201(1)(a), C.R.S. 2019; see also

  Burlington & C. R. Co. v. Schweikart, 10 Colo. 178, 14 P. 329 (1887).

  The Developer Entities identify no evidence in the record, nor could

  we locate any, that Commerce City was ever offered or accepted this

  public dedication. Accordingly, no public right was created in the

  Property’s roads.9

¶ 55   Article 5 of the CCR, titled “Easements,” describes the

  easements that are “General Common Elements,” and it does not

  change this analysis. Section 5.1(a) and (b) reference easements for

  the purpose of gaining access between the units or buildings and

  the “public streets adjoining the Property.”



  9As a practical matter, the Property is a gated development, which
  casts doubt on the extent to which the public could access its roads
  at all.
                                    30
¶ 56   Section 2.14 of the CCR, on the other hand, defines “Common

  Elements” as “all of the Common Interest Community except the

  portions thereof which constitute Units.” Excepting only the units,

  this definition necessarily includes the roads. Accordingly, because

  the Property’s roads are not public roads and the CCR designated

  them as “Common Elements” in the common interest community,

  the trial court did not err in conveying the roads to the HOA.

                            V.    Attorney Fees

¶ 57   The Developer Entities request attorney fees pursuant to

  section 38-33.3-123(1)(c), C.R.S. 2019, which provides that “[i]n any

  civil action to enforce or defend the provisions of this article or of

  the declaration, bylaws, articles, or rules and regulations, the court

  shall award reasonable attorney fees, costs, and costs of collection

  to the prevailing party.” 10 Thus, “a prevailing party in a CCIOA

  dispute is entitled to attorney fees.” Perfect Place v. Semler, 2016

  COA 152M, ¶ 80, rev’d on other grounds, 2018 CO 74.




  10 The unit owners oppose awarding the Developer Entities attorney
  fees; they do not request their own attorney fees.
                                     31
¶ 58   The HOA requests attorney fees and costs under the same

  provision, as well as costs under C.A.R. 39.

¶ 59   Section 38-33.3-123(1)(c) mandates an attorney fees award “to

  the prevailing party.” CCIOA does not define “prevailing party.”

  Under Colorado law,


            [t]o be a prevailing party for the purpose of an
            award of attorney fees pursuant to a statute or
            contract, the applicant must have succeeded
            upon a significant issue presented by the
            litigation and must have achieved some of the
            benefits that he sought in the lawsuit. But a
            party need not prevail upon the “central” issue,
            only upon a significant one.


  In re Marriage of Sanchez-Vigil, 151 P.3d 621, 625 (Colo. App. 2006)

  (quoting In re Marriage of Watters, 782 P.2d 1220, 1221 (Colo. App.

  1989)).

¶ 60   The Developer Entities argued that the trial court erred in its

  interpretation of the CCR, but we hold otherwise. And while the

  trial court erred in reforming the CCR, we hold the error was

  harmless. Additionally, we affirmed the trial court’s order that FDI

  convey the Property’s roads to the HOA. Accordingly, the HOA is

  the prevailing party under CCIOA, and the case is remanded to the

                                   32
  trial court to determine and award to the HOA its reasonable

  attorney fees and costs.

¶ 61   As for the HOA’s request for costs under both 38-33.3-

  123(1)(c) and C.A.R. 39, having concluded that the HOA prevailed

  on the significant claim against it, the remand must afford the trial

  court an opportunity to exercise its discretion as to awarding the

  HOA its costs. See Coldwell Banker Commercial Grp., Inc. v. Hegge,

  770 P.2d 1297, 1300 (Colo. App. 1988).

                             VI.   Conclusion

¶ 62   The judgment is affirmed. On remand, the trial court must

  determine the amount of the HOA’s reasonable attorney fees, and

  award that amount to it against the Developer Entities. The court

  shall also, in its discretion, address the HOA’s request for costs.

       JUDGE TAUBMAN and JUDGE HAWTHORNE concur.




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