Opinion
April 27, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1243
Fred R. Rehmer, Aurora, for defendant in error Lucille Seabert.
Harvey P. Wallace, Denver, for defendant in error Roy Jones.
Virginia Malloy, Denver, for plaintiff in error.
Jordan Hochstadt, Denver, for defendant in error Dave Visser.
Simon, Eason, Hoyt & Malone, Richard L. Eason, Englewood, for defendant in error Isenhart Realty Co.
Lesher & Gregg, Philip G. Gregg, Denver, for defendant in error Anothony Sweetman, Inc.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the order of their appearance in the trial court and are referred to by their trial court designations or by name.
Plaintiff Albina C. Talbot brought this action to recover damages for fraud and deceit. She alleged that she was induced to purchase the real estate located at 3301 S. Logan Street, Englewood, Colorado, by defendants' false and fraudulent representations that the several separate dwelling units located at that address could be rented to tenants, when, in truth and in fact, the zoning ordinances of the City of Englewood restricted the use of the property to a one-family unit. Plaintiff named as defendants the seller of the property and seller's real estate agents.
The defendants answered; tendered the general issue; and filed motions for summary judgment. These motions for summary judgment averred that the deed conveying the property was dated and recorded in 1960, and that the claims asserted in the complaint filed in 1968 were barred by either the three-year statute of limitations, C.R.S. 1963, 87--1--9, or the six-year statute of limitations, C.R.S. 1963, 87--1--11, or both. In support of these motions, defendants filed certified copies of two documents which had been duly recorded in the office of the Clerk and Recorder of Arapahoe County, Colorado. These documents, which were of record at the time plaintiff purchased the property, stated that the use of the subject property was restricted to a single-family residence by zoning ordinances of the City of Englewood. The zoning ordinances of the city were not set forth in the motions for summary judgment, and the question of whether or not the existence of such ordinances constitutes notice was neither presented to nor considered by the court.
The court granted the motions for summary judgment and dismissed the action. Plaintiff here seeks reversal, contending that the documents were recorded without statutory authority and, therefore, did not constitute constructive notice of the zoning restriction.
One of the documents was entitled 'Emergency Temporary Permit,' and the other was entitled 'Building Department Registration Statement.' Both documents were official forms of the Englewood Zoning Commission Board of Adjustments, both stated the legal description of the property involved, and both were signed by plaintiff's predecessor in title. The registration statement refers to a provision of the zoning ordinance which required the statement to be recorded by the building inspector. Both recorded documents specifically state that the use of the property is restricted to a single-family dwelling by the city zoning ordinance. These documents were entitled to be recorded under C.R.S. 1963, 118--6--9, which authorizes the recording of deeds and other instruments affecting the title to real property. This court has, in Arapahoe Land Title, Inc. v. Contract Financing, Ltd., 28 Colo.App. ---, 472 p.2D 754, implicitly recognized that zoning ordinances which restrict the use of property affect title. For this reason, instruments containing notice of such restrictions are recordable.
In the present case, the documents were of record at the time plaintiff purchased the property and constituted constructive notice of the zoning restriction. As stated in Delta County Land & Cattle Co. v. Talcott, 17 Colo.App. 316, 68 P. 985:
'A purchaser of real estate is bound to know what the records disclose concerning the title; and, if they indicate the existence of some outside condition by which it may be affected, he is bound to investigate; and he is charged with knowledge of the facts to which the investigation would lead.'
Plaintiff was, at the time she acquired title, charged with knowledge of the restriction on the use of the property and her failue to bring this action within the periods prescribed by either statute of limitations barred her recovery.
Judgment affirmed.
COYTE and DUFFORD, JJ., concur.