Hinsdale County Board of Equalization and Board of Assessment Appeals, State of Colorado. Petitioners
HDH Partnership; Lawrence Ausherman; Hondros Family Real Estate, LLC; Mark L. Ish; Herb Marchman; and Teresa M. Mull Revocable Trust. Respondents
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 16CA1723
Attorneys for Petitioner Hinsdale County Board of
Equalization: Schumacher & O'Loughlin, LLC Michael P.
O'Loughlin Gunnison, Colorado
Attorneys for Petitioner Board of Assessment Appeals: Philip
J. Weiser, Attorney General Krista M. Maher, Assistant
Attorney General Grant T. Sullivan, Assistant Solicitor
General Denver, Colorado
Attorneys for Respondents: Hoskin Farina & Kampf Michael
J. Russell Andrew H. Teske Karoline M. Henning Grand
The Lake Fork Hunting and Fishing Club (the Club) in Hinsdale
County, Colorado, consists of 1, 400 acres divided into
twenty-nine parcels called "Ranches" that are owned
in fee simple. Each owner holding a deed to a Ranch becomes a
member of the Club and is subject to a host of restrictive
covenants and bylaws through which the Club exercises
significant control over the property. The question before us
is whether the restrictive covenants and bylaws render the
Club the true "owner" of the Ranch parcels and
therefore liable for property taxes, even though the Ranch
owners hold record title to those parcels. The answer is no.
Respondents are four Ranch owners who, with notice of the
Club's restrictive covenants and bylaws, purchased deeds
conferring record title to their respective Ranches. In 2015,
the Hinsdale County Assessor conducted valuations of the
Respondents' Ranches and assessed property taxes to their
parcels. Respondents protested these valuations and
assessments to the Hinsdale County Board of Equalization (the
BOE), which denied their petitions. Respondents then appealed
the BOE's determination to the Board of Assessment
Appeals (the BAA), arguing that because of the Club's
restrictive covenants and bylaws, the Club is the true owner
of those parcels and should be held responsible for real
property taxes. The BAA denied the Respondents' appeal
and affirmed the Assessor's valuation of the Ranch
The Ranch owners then appealed the BAA's decision to the
court of appeals, which reversed the BAA's order. HDH
P'ship v. Hinsdale Cty. Bd. of Equalization, 2017
COA 134, ¶¶ 3, 51, ___ P.3d ___. The court of
appeals looked beyond the Ranch owners' record title and
examined the Club's restrictive covenants and bylaws.
Given the extent of the Club's control over the property,
the court concluded that the Club is the true owner of the
parcels for purposes of property taxation and viewed the
Ranch owners' interests as akin to mere licenses to
conduct certain activities on the Club's property.
Id. at ¶¶ 24-26.
We granted certiorari review,  and now reverse the judgment of
the court of appeals. Colorado's property tax scheme
reflects legislative intent to assess property taxes to the
record fee owners of real property. The Respondents in this
case hold record title to their Ranch parcels, which they own
in fee simple and can freely sell. They purchased their Ranch
parcels with notice of, and subject to, the Club's
restrictive covenants and bylaws, which they can vote to
amend or repeal. Because Respondents voluntarily agreed to
the restrictive covenants and bylaws that facilitate the
collective use of their property for recreational purposes,
we hold that they cannot rely on these same restrictive
covenants and bylaws to avoid property tax liability that
flows from their record title ownership. Accordingly, the
court of appeals erred in relying on the Club's
restrictive covenants and bylaws to conclude that the Club is
the "owner" of the Ranch parcels and that the Ranch
owners hold mere licenses to use Club grounds. The court
further erred in holding that the Assessor therefore
improperly valued the Respondents' parcels.
Facts and Procedural History
The Lake Fork Hunting and Fishing Club sits on 1, 400 acres
in Hinsdale County, Colorado. The Club was established in
1979 when the original developer recorded a "Declaration
and Establishment of Covenants, Conditions, Reservations, and
Restrictions for Lake Fork Hunting and Fishing Club" and
subdivided the land.
The Club property is divided into twenty-nine parcels, or
Ranches, that range in size from 35 to 155 acres. The Ranches
are owned in fee simple; Ranch owners may freely sell their
Ranch parcels and keep the proceeds. Each owner holding a
deed to a Ranch becomes a member of the Club. Club membership
follows record title to a Ranch and cannot be separately
sold, assigned, or transferred, except for one "floating
membership" created by the Club's bylaws that is
not attached to a Ranch.
Club members in good standing can seek election to a
three-member Board of Governors that manages the Club's
affairs, including its grounds, cabins, funds, and the
election of Club officers.
Through restrictive covenants, bylaws, and rules, the Club
exercises significant control over the property. Notably, the
Declaration provides that the Club reserves for the enjoyment
and benefit of Club members "exclusive hunting and
fishing rights and privileges, including all rights of
ingress and egress upon and across the entire property,
including all Ranches." This reservation allows all
Ranch owners to hunt, fish, and camp throughout the entire 1,
400 acres without regard to Ranch property lines. In a
similar vein, the Club reserves the exclusive right to
construct and maintain utilities, roads, lakes, ditches,
bridges, and fences; pasture livestock on the entire
property, including individual Ranches; impound, store, and
divert waters of the Lake Fork of the Gunnison River across
the Ranches for the benefit of Club members; and maintain
easements necessary to upkeep the Club's skeet and trap
field, golf driving range, and airport runway. The
Declaration also imposes several restrictions on the Ranch
parcels. For example, Ranches cannot be conveyed in smaller
lots or subdivided; no trailers or mobile homes are permitted
on the property without written permission of the Board of
Governors; and no part of the property can be used for mining
or drilling activities.
The Club's bylaws and rules further regulate use of the
Club grounds (defined as Club property and all Ranches).
Among other things, these bylaws and rules limit the number
of guests a member may invite to the Club for hunting and
fishing, and the number of days a guest may hunt or fish.
Members must register themselves and their guests when using
the Club grounds. Only "members in good standing"
are entitled to the Club's privileges. And the Board of
Governors can suspend the privileges of a member who violates
the Club's regulations or "for any conduct which in
the opinion of the Board, is improper or prejudicial to the
welfare of or reputation of the Club."
Importantly, although the Ranch owners take their parcels
subject to the Club's covenants and bylaws, they can vote
to amend or repeal those covenants and bylaws, or even
terminate the Declaration in its entirety. As an example of
the Ranch owners' self-governance, a supermajority of
Ranch owners voted in 1999 to amend the Declaration to
prohibit the construction of any residences on an individual
Respondents HDH Partnership, Lawrence Ausherman, Mark L. Ish,
Herb Marchman, Hondros Family Real Estate, LLC, and Teresa M.
Mull Revocable Trust (collectively, Respondents) own Ranches
in the Club. The Respondents purchased their Ranches
via general warranty or quitclaim deeds and hold record title
to their Ranches. It is undisputed that Respondents had
notice of the restrictive covenants when they purchased their
In 2015, the Hinsdale County Assessor conducted new
valuations of the Ranch parcels and assessed property taxes
to the Ranch owners. Respondents protested the valuations and
assessments to the BOE, which denied Respondents'
petitions. Respondents appealed the BOE's decision to the
BAA, arguing that although they hold record title to the
Ranches, they do not actually enjoy the traditional incidents
of ownership, which instead are retained by the Club.
Therefore, Respondents contended, the Club should be
considered the "owner" of those parcels for
purposes of property taxation.
The BAA rejected Respondents' arguments. It observed that
Respondents obtained interests in their Ranches through deeds
transferring real property, and that as holders of those
deeds, Respondents had the unrestricted right to sell their
Ranch parcels and keep the proceeds. The BAA also observed
that Ranch owners enjoy other quintessential incidents of
ownership, such as the right to possess and use the entire 1,
400-acre Club grounds (including to hunt and fish), and the
right to exclude non-members from Club grounds. Indeed, it
found that the use of the entire Club grounds is a benefit
that Respondents purposefully bargained for when purchasing
property rights within the Club's grounds. The BAA thus
viewed the Club's restrictions as the Ranch owners'
exercise of their liberties and self-governance, finding that
the restrictions "are entirely self-imposed as they can
be amended or terminated at any time by the majority vote of
the Ranch owners." Finally, it rejected Respondents'
attempt to classify their property rights as mere licenses or
timeshares, reasoning that Respondents can sell, transfer, or
dispose of their parcels as they see fit, and that their
access to Club grounds is not time-limited.
Respondents appealed the BAA's decision to the court of
appeals, which reversed the BAA's order. HDH
P'ship, ¶¶ 3, 51. The court first
concluded that record title is not determinative of property
ownership. Id. at ¶¶ 16-17. It reasoned
that, although section 39-5-102(1), C.R.S. (2018), directs
assessors to ascertain ownership "from the records of
the county clerk and recorder," such records are merely
"prima facie evidence of all things appearing
therein." Id. at ¶ 16 (citing §
39-1-115, C.R.S. (2018)). Because "prima facie"
means "[a]t first sight; on first appearance but subject
to further evidence or information," see prima
facie, Black's Law Dictionary (10th ed. 2014), and
because section 39-5-122(2), C.R.S. (2018), allows a person
who believes property has been erroneously assessed to him or
her to "appear before the assessor and object," the
court concluded that record title "merely creates a
rebuttable presumption" of ownership. HDH
P'ship, ¶¶ 16-17.
The court then decided it was required to look beyond
"form," or record title, and examine the
"substance" of Respondents' and the Club's
rights to determine who should be held responsible for taxes.
See id. at ¶¶ 18-27. It concluded that,
because the Club has a high degree of control over the
grounds, and because Respondents may only use the grounds
subject to the Club's control and regulation, the Club is
the true owner of the parcels (and therefore liable for
property taxes), while Respondents' fee title interests
are akin to mere licenses. See id. at ¶¶
The court also summarily rejected the BOE's contention
that the Colorado Common Interest Ownership Act (CCIOA)
required the Assessor to assess the parcels individually,
reasoning that section 38-33.3-105(2), C.R.S. (2018), applies
only to common interest communities created after June 30,
1992, unless they have elected CCIOA treatment. Id.
at ¶ 39 (citing §§ 38-33.3-115, -117, -118,
C.R.S. (2018)). The court noted that the Club was created in
1979 and has not elected CCIOA treatment. Id.
Finally, based on its conclusion that the Club is the true
property owner and that Respondents hold only licenses to use
Club grounds, the court held that the ...