2011 Mid-Session Colorado Legislative Update

Otten Johnson Alert March 2011

We are about halfway through the 2011 Colorado legislative session, which began in early January and ends in early May. Several hundred bills have been proposed, and many have already been "postponed indefinitely" or voted down in committee or in a legislative chamber. Below are summaries of certain significant bills affecting Colorado real estate law or the commercial real estate industry that continue to be debated as of the date of publication of this Alert. Given the many bills under consideration, this list is not intended to be a comprehensive overview.

Real Estate Finance - Lenders Must Pursue Collateral First (HB 11-1139). This bill would prohibit consumer loan creditors, credit unions, savings and loan associations, state banks, industrial banks and mortgage lenders from attempting to collect a debt from a borrower personally unless (a) the creditor first attempts to collect the debt from the collateral, and (b) the proceeds from the collateral are insufficient to pay the debt.

Ballot Measures - Constitutional Initiatives and Referenda Require 60% Voter Approval (Senate Concurrent Resolution 11-001). This resolution would put to the voters via referendum in November 2012, a proposed amendment to the Colorado Constitution that would: (a) beginning in 2013, increase the amount of votes needed to pass a ballot measure for a Constitutional amendment from a simple majority to 60%, except as to measures that repeal Constitutional ballot measures passed prior to 2013, (b) require that a certain number of signatures for Constitutional initiatives be obtained from each congressional district in the State, and (c) increase the voting requirement in the legislature to amend or repeal a successful statutory initiative or referendum from a majority to two-thirds for a three year period after passage. The scope of this measure clearly goes beyond real estate. However, it may be of particular concern to the Colorado commercial real estate industry, which has had to defend against various ballot measures over the years. This referendum would make future Constitutional initiatives and referenda more difficult to pass, but it would provide greater protection to successful statutory ballot measures.

Agricultural Land Taxation - Split Assessment for Agricultural Land with Residence (HB 11-1146). This bill would allow tax assessors to divide a parcel for assessment purposes into agricultural land and up to two acres of residential land unless the residence is "integral to agricultural operations." The phrase "integral to agricultural operations" would be defined by the Colorado property tax administrator.

Property Disclosures - Commercial Properties Must Disclose Energy Data (SB 11-130). This bill would require owners and operators of commercial properties, defined to exclude multifamily properties sold or leased on a unit-by-unit basis, (a) to upload to the Environmental Protection Agency data necessary to generate an energy performance rating, and (b) disclose the building's energy performance rating (if one is generated by the EPA) to a buyer, tenant, or lender at the time of conveyance and upon request by such parties. The bill would only cover commercial buildings in excess of 50,000 square feet during 2012, but would cover all commercial buildings thereafter.

Also, a bill restricting private transfer fees is expected to be introduced but has not been introduced yet. Further information on these and other bills affecting real estate may be obtained by contacting one of the lawyers in our Real Estate practice group or by visiting www.statebillinfo.com.

Otten Johnson's Real Estate practice group has experience in assisting clients that seek to influence the viability or content of proposed legislation. For such assistance, please contact any of the attorneys in the Real Estate practice group (for a listing, click here.)

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