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Commentary and Analysis Regarding Colorado Law

Your Next Deed May Be a Special Warranty Deed. You May Have Questions.

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Colorado has four statutory deeds: General Warranty Deed, Special Warranty Deed, Quit Claim Deed, and Bargain and Sale Deed. Historically, General Warranty Deeds were the most prevalent and preferred since they grant the broadest protection for buyers as their sellers are warranting the title to the real property since the beginning of time. Special Warranty Deeds limit the warranty of title to the period that the seller owned the real property. Quit Claim Deeds give no warranty of title – the buyer gets only what the seller had at the time the deed is signed. Bargain and Sale Deeds also offer no warranty of title but do transfer the title to the seller at that point in time as well as title that the seller acquires after the date of the Bargain and Sale deed.

Then in 2019, Colorado enacted a new statute that allowed deeds to be subject to “Statutory Exceptions” which are composed of

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Gift and Estate Tax Uncertainty

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Gift and estate tax uncertainty is not new.  Over the past several years, we have seen the amount a person can leave free of estate tax utilizing their estate tax exclusion amount rise from $600,000 in 1997 to $11,580,000 in the year 2020, with several stops in between.  We have had one year of estate tax repeal, in 2010.  In 2012, we were on the brink of the estate tax exclusion amount dropping from $5,120,000 to $1,000,000, but the law was changed at the eleventh hour to prevent that from happening. 

Even the current law contains a provision that will cause the exclusion amount to drop to $5,000,000 plus an inflation adjustment in the year 2026 (resulting in an exclusion amount of approximately $6,000,000). 

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Take the Gain, Pay the Tax and Run?

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Each Presidential candidate has put forth a proposed plan for Federal taxation of long-term capital gains which, if passed into law in 2021 or beyond, could have major impacts on your decision regarding the timing of sales or transfers of appreciated capital assets.  

1. Mr. Trump has proposed reducing the maximum long-term capital gains tax rate from the current maximum of 20% to 15%. Assuming you sell capital assets in 2020 and have a taxable gain amount greater than $250,000, you’d also owe the Net Investment Income Tax (NIIT) percentage of 3.8% on the amount over the $250,000 threshold (if married, $200,000 for singles), for a combined tax rate of 23.8% on the long term capital gain. Obviously, if Mr. Trump’s plan to reduce the maximum tax rate to 15% is adopted in 2021 by Congress, your tax bill would be favorably impacted if you wait until 2021 or later to sell the capital asset.

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Financial Danger Ahead: See Your Financial Advisor/Attorney Now

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Assuming a regime change in Washington, the Biden tax plan proposes monumental changes that will have a massive impact on how many individuals (this means you) have structured their estate plans and finances for decades. Some of the things that should be discussed NOW with your financial consultant:

 

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Securing a Title Opinion for Your Water Rights Purchase

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Water in Colorado belongs to the people of the State. The State manages the resource for the benefit of its citizens. Colorado's system of prior appropriation for managing water rights has its foundations in mining law. This system gives users of surface water a priority based on the date their water right is placed to beneficial use. Under this system, the rights granted are 'usufructuary' in nature, meaning that a water right holder owns the right to use water but does not own the water outright. A water right established through this system is limited in time, place, and manner of use. Further, water rights are established and often held separately from the land upon which the water exists or is used.

Generally, water rights with older priority dates can divert and use their water before water rights with newer priority dates. Much of the State's surface water has been appropriated to the point that establishing a new water right would yield a low probability of use. With an increasing population, low rainfall, and a finite amount of water, acquiring older water rights are often necessary to have useable water. Colorado State University has additional resources available here for those curious about Colorado's general operation of water rights.

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Climate Change Impacts on Colorado Water Users

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Recent fires and high temperatures across the West may have water users wondering what rising temperatures and sustained drought conditions might mean for Colorado water users.  While only time will tell, it’s relevant to note that the summer of 2020 was one of the hottest and driest on record.  The month of August was one of the top ten warmest Augusts on record according to the National Oceanic and Atmospheric Administration’s “August Climate Summary,” with 26 days above 90 degrees Fahrenheit and 17 days above 95 degrees!  Denver received only 0.35 inches of precipitation in August, which is 1.34 inches below normal, and there were only 5 days total during the month with measurable rainfall at all.

What does this mean for Colorado water users?  Changes in temperature and precipitation can impact snowpack, length of crop seasons and quantities produced, wildfires, and pests, just for starters.  According to the US EPA, snowpack in the western United States has been decreasing since the 50’s, and the amount of snowpack measured in April at Colorado sites specifically has declined by 20-60%, on average.  Diminishing snowpack can mean less spring/summer runoff, which typically provides much of the water needed by agricultural and municipal water users.  Earlier runoff can mean changes in the priority system relied upon by Colorado water users, as many decrees for reservoirs (typically relied on to capture spring runoff for later summer use) have limitations on when such storage can start and when it must stop.  Rising temperatures can also increase evaporation from soil, crops, and storage reservoirs, meaning more water is lost to the air than usual.  Soils may become drier as evaporation rates increase, which can mean they retain more water when there IS precipitation so that less water is ultimately flowing into the state’s stream systems.  Changes to Colorado snowmelt, rainfall, and temperature patterns may also impact Colorado’s farms and ranches.  Increased evaporation can increase irrigation demands and mean that some farms change to dry land farming, which typically decreases crop yields.

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What Should You Do After a Motorcycle Crash

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3 Things You Should You Do After a Motorcycle Crash?

Motorcycle crashes tend to be devastating and result in significant injury. The moments after a motorcycle crash and the days and weeks that follow are challenging. What you do during this time affects your physical and mental recovery, as well as your opportunity to receive compensation for your injuries.

In many cases, the person or people involved have no choice but to put all of their other concerns on hold and seek immediate emergency medical attention after a motorcycle crash. But following the initial assessment and emergency response, there are several things you can do to improve the odds you’ll receive compensation for your medical treatment, loss of income, and the pain and suffering you endured due to your injuries.

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Should I File a TBI Claim?

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Traumatic brain injuries (TBI) can have catastrophic consequences. These types of injuries change can often change a person’s life forever. TBIs can affect a person’s ability to work, drive, interact with friends and family, and lead what was previously their normal daily life.

One of the most common causes of a TBI is auto accidents. According to the CDC, there are more than 5 million Americans with TBI-related disabilities and many of them endured these injuries in vehicle accidents.

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Should I Accept a Settlement Offer from an Insurance Company after an Accident?

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If you’ve recently been injured in an automobile accident, chances are you’ve received a call from the insurance company. Insurance providers representing negligent drivers are quick to contact accident victims. Their goal is to convince injured parties to settle out-of-court and usually for far less money than they’d receive if they waited.

In nearly every case, this initial insurance settlement offer is unfair and it’s an attempt to avoid paying you what you deserve. But is it ever smart to accept a settlement offer from an insurance company if you’ve been injured in an accident?

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Colorado Water Right Abandonment List

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The State of Colorado prides itself on its system of water management. Situated in the arid American West, a once novel priority system was established for equitable water distribution. This prior appropriation system allows the delivery of water to senior users basing the order of use on priority date, not location or proximity to the water source. This system is aimed at allowing water to flow to its most valuable use, preventing speculation, while maximizing beneficial use. The Decennial Abandonment List represents one of the system's checks to make sure that water stays in use. Kara Godbehere of Lyons Gaddis recently was interviewed by KUNC, Community Radio for Northern Colorado regarding the Abandonment List. Click here for the full article and interview. 

If you have a water right that appears on the Decennial Abandonment List or would like more information on the process, the best course of action is to hire a water professional to defend your right from abandonment. Consider hiring one of the Lyons Gaddis water team for the best results. 

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Protecting Water Rights from Calls

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Water rights in Colorado are prioritized and administered based on the year of their decree and date of appropriation. The oldest decreed water rights are most senior and are entitled to divert their decreed flow rate when water is in short supply. If there is not enough water in the stream at their diversion point, they can place a call for the delivery of water against junior water users to satisfy their full demand. The State Engineer and Division Engineers can also shut down water diversions that cannot be adequately administered to protect other water users.

In many parts of Colorado, the streams have been over-appropriated for 100 years or more at certain times of the year, and calls for water rights may be as senior as the 1860s. Water rights on the main stem of the Yampa River had never been called out until 2018. It happened again in 2020. Those highly publicized calls were placed to protect water rights decreed in 1951 through 1963 near Dinosaur National Monument. The calls lasted about 23 days in 2018 and only ten days in 2020, assuming the early September snowstorm puts an end to calls this year. Those calls would have lasted longer if it had not been for tremendous cooperation between the water users, Division Engineer, Tri-State, Colorado Water Trust, and the Colorado River District.

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Times Call - Longmont Housing Authority

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In addition to serving as Co-Managing Shareholder of Lyons Gaddis, Cameron Grant is also the Chair of the Longmont Housing Authority.  This extracurricular pursuit allows Cameron to bring his real estate and housing expertise into play as he helps the organization serve Longmont residents in need of affordable housing.  Cameron is quoted extensively in this Times Call article regarding the restructuring of the Housing Authority and its new relationship with the City of Longmont.

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What If I Was Hit by an Uninsured Motorist

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In an ideal world, vehicle accidents would never happen. And if they did, everyone involved would have enough insurance coverage for all the damages that are caused. In reality, this is not the case and many people are involved in crashes caused by the negligence of an uninsured or underinsured motorist.

What should you do if this happens to you?

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Aurora Purchase of Northern Colorado Water

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Recently, the City of Aurora entered into a contract to purchase 119 shares in the Whitney Irrigation Company from BCI Waterco, LLC, an affiliate of the Broe Companies. Some are concerned that this purchase signals a renewal of water raids from the Denver metro area into northern Colorado water supplies. However, the Denver metro area water needs are on a scale that water providers want to purchase and assemble large blocks of water.

It is not efficient or economical for metropolitan water providers to purchase small amounts of water and then transport that water to the south. Economies of scale discourage such patchwork purchases where options to make a single purchase of a larger quantity of water exist. The Aurora purchase is for shares with an already quantified historic consumptive use of 1,629 acre feet for a purchase price of more than twenty-six million dollars. The shares historically irrigated approximately 1,100 acres.

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Lyons Gaddis Shareholder Named Tax Law Lawyer of the Year for Boulder by Best Lawyers ®

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Jennifer Spitz has been named Tax Law Lawyer of the Year for Boulder for 2021.  The Best Lawyers ®  “Lawyer of the Year” honor is bestowed on a single lawyer in each practice area and designated metropolitan area making this accolade particularly significant. Honorees are selected based on impressive voting averages received during the peer-review assessments.

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Preparing for Death and Possible Disability

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Real Estate Rescue – Government Help for Commercial Property


This Alert is one in a collection of articles created by Lyons Gaddis in our effort to get important information to our clients regarding the effect of the novel coronavirus (COVID-19) outbreak in the United States.  This Alert focuses on a proposed Bill called the “Helping Open Properties Endeavor Act of 2020,” establishing a loan fund to avoid a wave of property foreclosures. 

HOPE Act: Early Thoughts on a Possible Rescue Plan for Real Estate

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Governor Polis’ Safer-at-Home Order and Implications for Employers and Restaurants

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UPDATE: On June 1, 2020, Governor Polis issued an updated Executive Order, linked here, that extended the Safer-at-Home phase of the states COVID-19 pandemic response for thirty (30) days. That Order now only recommends rather than directs employers to accommodate employees with childcare needs or that live with a Vulnerable Individual. That Order also encourages Coloradans to explore the vast outdoors while practicing social distancing and wearing a face covering. In addition to this extended Order, the restaurant guidelines, although forbidding bars to open, has evolved based upon a loophole that a few bars and breweries have found. If a bar or brewery has a restaurant license and offers food items it can reopen. However, if a bar or brewery reopens under its restaurant license it must also follow the restaurant guidelines. Further discussion on bars and breweries reopening can be found here.


On April 27, 2020, Governor Polis issued an Executive Order, linked here, that transitioned the state from Stay-at-Home to Safer-at-Home in response to the COVID-19 pandemic. The Safer-at-Home Executive Order is one of three governmental response levels meant to protect public health. The three levels are Stay-at-Home, Safer-at-Home, and Protect-Our-Neighbors. A graphic of the levels can be found here. Each level provides differing business closures, testing requirements, and permitted density of gatherings based upon the prevalence of the virus in the state. The Governor will monitor the virus and shift his Orders accordingly. On May 25, 2020, Governor Polis extended the April 27, 2020, Executive Order, which was set to expire on May 27, 2020, to June 1, 2020. The extended Executive Order can be found here.

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Executive Authority In Plain View During COVID-19 Pandemic

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Article IV, Section 2 of the Colorado Constitution states that “The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.” Perhaps no other time in recent memory has this authority been wielded more rapidly, widely, and with such impact to members of the public than in the current pandemic created by the novel coronavirus. This impact has come through the Governor’s use of executive orders to control everything from the ability to move freely in the State (Stay at Home, D 2020-017, and Safer at Home, D 2020-044), to the operation of ski areas (D 2020-004), and the ability to have an elective or non-essential surgery (D 2020-09), to name a few.Put simply, executive orders allow the Governor to create law without the normal legislative process the General Assembly goes through to enact statutes. Under normal circumstances, the General Assembly (as the legislative branch) is charged with making the laws through the approval of bills, while the Governor holds approval authority over the bills passed by the legislature before they can become law (the judiciary, as the third branch of government is charged with interpreting the constitution and laws of the state). In effect, executive orders are intended to allow for more flexibility in specific times of need, so that quick actions can be taken outside of the context of the normal three-branch system of government. [In case anyone needs a refresher on our three-branch system, I would direct you to the following scholarly overview: Schoolhouse Rock (I will leave the irony of the “three-ringed circus” analogy up to the reader)].

Executive orders are usually limited to directing how the executive branch of government functions. However, with prior approval from the legislative branch, executive orders can become more wide-reaching, which is what we have seen in the current pandemic circumstances.

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New Louisville Office Location

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As of May 1, 2020, after working 6 years on the west side of Louisville, Lyons Gaddis moved the Louisville office downtown. Our new address is 950 Spruce Street, Suite 1B, right across the street from the Louisville Public Library. We look forward to serving and seeing you at our new office.

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Serving The Entire State Of Colorado
Map and Directions


Longmont Office

515 Kimbark Street, Second Floor
Longmont, CO 80501
Phone: 303-776-9900 
Maps & Directions

Louisville Office

950 Spruce Street, Unit 1B
Louisville, CO 80027
Phone: 720-726-3670 
Maps & Directions

Satellite Office

748 Whalers Way, Suite # 240A
Fort Collins, CO 80525
Maps & Directions