Recent Developments under Colorado's Homeowner Protection Act of 2007

Effective April 25, 2007, the Colorado General Assembly enacted the Homeowner Protection Act (HPA) "[i]n order to preserve Colorado residential property owners' legal rights and remedies." C.R.S. § 13-20-806(7)(a). The General Assembly incorporated the HPA into Colorado's Construction Defect Action Reform Act (CDARA), C.R.S. § 13- 20-801 et seq. Under the HPA, "any express waiver of, or limitation on, the legal rights, remedies or damages provided by [CDARA] . . . or on the ability to enforce such legal rights, remedies, or damages . . . are void as against public policy." C.R.S. § 13- 20-806(7)(a). The General Assembly was careful to note that the HPA "applies only to the legal rights, remedies or damages of claimants asserting claims arising out of residential property," not property constructed for commercial endeavors. C.R.S. § 13- 20-806(7)(c).

One of the most significant disputes that has arisen under the statute is whether the HPA invalidates contractual damage limitations between developers of residential property and their subcontractors or design professionals. Developers and general contractors argue that the statute does not draw any distinction as to who the contracting parties must be in order for the HPA to apply — only that "residential property" be involved...