The Colorado 35-Acre Rule and Other Less Obvious Legal Surprises to Consider Before Buying a Home in Colorado

When you buy a home or piece of land in the Denver-Boulder area, you are buying not only a physical entity but also a legal entity. You buy into a set of restrictions on the use of the property that emanate from both governmental and nongovernmental sources. You also buy into a set of obligations to other parties such as the obligation to pay taxes, road maintenance fees, or home owner association fees. Before buying any real estate property, it’s important to understand the physical and the legal conditions that may affect your future ownership plans. For example, did you know that the “Colorado 35 Acre Rule” restricts subdividing land into parcels under 35 acres? Let’s avoid legal surprises like this!

One of the empowering aspects of owning your own home is that you no longer have to ask the landlord whether you can paint the interior, use a barbecue grill on the back porch or put a hammock on the balcony. For many first time home buyers, the concept that you can do what you want with property that you own is deeply ingrained. However, while you generally do have much more control as an owner, there may be many restrictions on your use of the property, depending both on the property and on legal jurisdiction. Most such restrictions stem from subdivision covenants, local ordinances and zoning regulations, and state statutes and regulatory practices.

Even more problematic, and sometimes surprising, for many homeowners is the fact that other people often have some limited rights to use the property that you are buying.

Statutes and Regulatory Practices

The trickiest restrictions on property usage emanate from more general city, county, and state regulations.  They are tricky precisely because they are more general, because they are not  “attached” to the specific property that you are looking at. As a consequence, you will probably receive no specific notification of these restrictions during the home buying process.

For example, many city and county ordinances restrict the number of dogs that a homeowner can have on a residential property or the number of unrelated individuals who can share a  home. If you have five dogs or five good friends who will be moving in with you, there is no established process to notify you that you may be buying a problem.

The 35 Acre Subdivision Law

An example more specific to our market: State law in Colorado has long restricted subdividing land into parcels under 35 acres unless the landowner obtains the approval from the local governing jurisdiction, that is, the county or city in which the land is located. In Boulder County, that approval has generally been denied for the past 30 years. If you and your extended family move from Vermont and buy a large house on 69 acres, thinking that later you  will build three more houses on the property so that everyone can have their own place, you’ll be in for a shock when you discover that only one home can be built on the 69 acres. It’s too small to divide into two 35 acre parcels.

Your only protection against these surprises is to review the specific plans you have for using a property with city and county planners, with local real estate attorneys, and/or with local real estate agents before you buy the property.

Subdivision Covenants

Subdivision covenants are probably the easiest limitation on the owner’s use rights for a potential home buyer to evaluate. Most subdivisions or condominium complexes developed since World War II have some form of restrictive use covenants. These are a set of agreements recorded with the county that govern the owners’ use of the properties within the subdivision. Most condominium and townhome complexes, and some subdivisions of single family homes that have home owner associations, have unrecorded rules and regulations in addition to the recorded covenants. 

Generally, these covenants and rules are enforceable either by a homeowner’s or neighborhood association or by other owners within the subdivision. In older subdivisions, restrictions will generally be relatively limited. They may forbid using the property for commercial purposes or for mining and livestock grazing. In newer subdivisions, however, covenants may forbid parking your RVs in the driveway, place limits on the type and location of fencing you can install, or specify the color that you can paint your house. Recorded covenants should be listed in the “schedule of  exceptions” in the title commitment (see the discussion of title insurance in our section Under Contract).

The home buyer needs to carefully review these covenants, and any other rules and regulations that govern the subdivision, to make sure that they can live within them. You also need to confirm that existing decks or fences don’t already violate the restrictions the covenants have placed on the property.

Local Zoning Regulations

Reviewing local zoning regulations is also comparatively easy. Visit to the local planning or zoning office to find out what the zoning is for the property that you’re interested in and get a copy of the use restrictions that govern that zoning type. Zoning regulations are most likely to become a major issue in your property search if you have a special use in mind, if you want to board dogs or run a commercial greenhouse for example. However, residential zoning restrictions can put limitations on other types of home businesses or on renting out rooms. If you plan anything other than simply living in the home with your family, you should probably take a good look at zoning regulations.  And if you don’t want to be located in an area where your neighbor can open a commercial dog kennel, you better make sure the right restrictions are in place.