However, Colorado also recognizes a widely accepted and major modification of this rule which holds that "those covenants in the antecedent contract which are not intended by the parties to be incorporated in the deed, or which are not necessarily satisfied by the execution and delivery of the deed, are collateral agreements and are preserved from merger." City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26, 29 (1967) (quoting from Urban Farms, Inc. v. Seel, 87 N.J. Super. 177, 208 A.2d 434, 437 (1965)). It is clear under Colorado law that there is no merger where the contractual agreements sought to be enforced do not relate to the "title, provision, quality, or emblements of the land which is the subject of the contract." Id.; see also Brooks v. Hodges, 43 Colo. App. 205, 606 P.2d 77, 79(1979).

Although it is desirable for the documents to refer to each other, there is no requirement that they do so." (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist. , 677 P.2d 320 (Colo. 1984) ; Harty v. Hoerner , 170 Colo. 506, 463 P.2d 313 (1969) ; Westminster v. Skyline Vista Dev. Co. , 163 Colo. 394, 431 P.2d 26 (1967) )). Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

Upon the facts present here, the Colorado Supreme Court has held that if the delivery of the deed is one of several acts to be performed in accordance with a contract, the delivery of the deed constitutes only part performance of the contract and other acts to be performed remain obligatory. City of Westminster v. Skyline Vista Develop. Co., 163 Colo. 394, 431 P.2d 26 (1967); Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260, 263 (1963). In the City of Westminster case, the Colorado Supreme Court succinctly stated the rule applicable here, "those covenants in the antecedent contract which are not intended by the parties to be incorporated in the deed, or which are not necessarily satisfied by the execution and delivery of the deed, are collateral agreements and are preserved from merger."

However, agreements in the contract that are do not relate to these subjects, which are not necessarily satisfied by the execution and delivery of the deed, are not merged and remain enforceable following delivery of the deed. Id.; Coe v. Crady Davis Corp., 60 P.3d 794, 796 (Colo. App. 2002), citing City of Westminster v. Skyline Vista Develop. Co., 431 P.2d 26 (Colo. 1967). Here, the arbitration agreement is not a covenant relating to the title, quantity, possession, or emblements of the property itself; it is, quite obviously, not an agreement that can be satisfied by execution and delivery of the deed.

Covenants in an antecedent contract that are not intended by the parties to be incorporated in the deed, or that are not necessarily satisfied by the execution and delivery of the deed, are collateral agreements and are preserved from merger. City of Westminster v. Skyline Vista Dev. Co., 163 Colo. 394, 431 P.2d 26 (1967). Absent express language to the contrary, delivery of a deed extinguishes only covenants pertaining to title, possession, quantity, or emblements of the land.

Generally, a buyer's acceptance of a deed tendered in performance of a sales contract extinguishes by merger any covenants in the sales contract relating to title, quantity, possession, or emblements of the land. It does not, however, affect other covenants that are not intended to be incorporated in the deed, or which are not necessarily satisfied by the execution and delivery of the deed. City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967); Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313 (Colo.App. 1996). Here, the attorney fee provision does not relate to title, quantity, possession, or emblements of the land.

As a preliminary matter, we note that under law of merger, prior agreements, covenants, and conversations are merged into the final, formal, written contracts executed by the parties. See City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967); Skidmore v. First Bank, 773 P.2d 587 (Colo.App. 1988). Hence, any promises or covenants in the May 19, 1982, letter of commitment to provide long-term financing for five years merged into, and were extinguished by, the parties' final, formal, written agreements executed on May 27, 1982.

By the doctrine of merger, a buyer's acceptance of a deed tendered in performance of a contract to convey serves to extinguish those covenants in the antecedent contract that relate to the title, possession, quantity, or emblements of the land. City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967). One who conveys an easement has given up the right to use the strip of land for uses inconsistent with roadway use, and he has parted with one of the elements constituting fee simple title.

The deed showed that Oberlohr conveyed the unit to Erickson, as trustee, and the contract thus merged into the deed. See City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967). Therefore, in light of testimony concerning the defective solar heating system, there was sufficient evidence to support instructing the jury on the implied warranty and to support its verdict for plaintiff on that claim.

If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Harty v. Hoerner, 170 Colo. 506, 463 P.2d 313 (1969); City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967). Although it is desirable for the documents to refer to each other, there is no requirement that they do so.