New 2022 HOA Laws and What They Mean For Your HOA
The Utah general legislative session for 2022 was January - March 2022, and the general effective date for legislation from the session was May 4, 2022.
New 2021 HOA Laws and What They Mean For Your HOA
The Utah general legislative session for 2021 was January - March 2021, and the general effective date for legislation from the session is May 5, 2021 (except that one bill does not go into effect until October 1, 2021).
Statutes to be Aware of
Every board member and manager should know that certain laws exist. It isn't necessary to know what the law says regarding everything, but there are key statutes every board member and manager should generally be aware of. They include, in my opinion, the following . . .
Primer for Board Members
New board members naturally have many questions about what their duties are and what authority they have. This primer is a brief, concise introduction to many fundamental concepts of association governance, operation and management every board member should ...
Which Laws Apply to My Association?
Quick Summary: The Condo Act applies to property which the owner (generally, the "declarant") submits to the Act by recording a declaration as provided in the Act. To determine if the property has been submitted to the Act, look for language in the first few pages of the CC&Rs/declaration that says the property is . . .
7 Signs Your HOA’s Governing Documents May Be Out of Date
Many communities were established with governing documents that worked well for the developer, but may or may not work so well for the HOA and the homeowners. Many of these governing documents . . .
Open Meetings, What's Required?
Both the Utah Condominium Ownership Act and the Utah Community Association Act require board meetings to be open to each homeowner (or the homeowner’s designated representative).
Can an HOA Board Draft their Own CC&Rs?
By Curtis G. Kimble
I am routinely asked if I will review amended governing documents (CC&Rs, bylaws, etc.) which the board, the property manager or another person has drafted in order to save money over having an HOA attorney draft them.
Collecting Assessments: Remedies and Risks
A homeowners association is entirely funded by the assessments of its members. This means that an owner's delinquency in paying assessments directly affects the association's ability . . .
Did the Vote Pass? What Various Voting Requirements Mean
You and the rest of the board have worked hard to communicate the importance of a renovation project to the members and a special assessment is desperately needed to fund the project. But, the approval of the members is needed to pass the special assessment. You know your CC&Rs require a majority of members to vote yes to approve a special assessment. But, you’re not sure if it’s a majority of all of the members, or a majority of those that actually vote, or of those that show up at the meeting.
8 Misunderstood Points of HOA Governance
HOA governance isn’t simple or easy and, unfortunately, board members are just volunteers doing their best with too little time and too little money. I think that’s why even basic principles of HOA governance are often misunderstood by board members (and managers too). Here is some clarification of 8 frequently misunderstood issues:
Relieving Board Members' Burdens through Committees
By Curtis G. Kimble
One of the most powerful but overlooked tools at the disposal of an association board is that of committees.
Q & A
Questions posted to statutes by readers and answers provided by an HOA attorney.
For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act.
Pages with Posted Q & A
Page Name | (number of Q & A's)
- 57-8-8.1. Equal treatment by rules required -- Limits on rules | (2)
- Reasonable Accommodations under the Fair Housing Act - Q & A | (2)
- Park West Condo v. Deppe (which law governs, strict compliance) '06 | (2)
- 16-6a-807. Resignation of directors | (1)
- 57-8a-227. Records -- Availability for examination | (6)
- 16-6a-1601. Corporate records | (2)
- 57-8-39. Limitation on requirements for amending declaration or bylaws | (4)
- 57-8a-226. Board meetings -- Open Meetings | (4)
- 57-8a-209. Rental restrictions | (2)
- 57-8a-104. Limitation on requirements for amending governing documents -- Limitation on contracts | (2)
- 57-8a-217. Association rules, including design criteria -- Requirements and limitations relating to board's action on rules and design criteria -- Vote of disapproval | (2)
Posted Q & A
16-6a-1601. Corporate records
- 7.6.20 9:19am
Are ballots considered "records" - keep how long?After a vote to amend the CC&Rs, how long must an HOA keep and make available those ballots?
16-6a-807. Resignation of directors
No Affirmative VoteWhat actions can members take if the 3 board members are aligned refuse to an affirmative vote against one of their board buds?
- 5.20.21 7:47pm
57-8-39. Limitation on requirements for amending declaration or bylaws
RE: Meeting notice, including matters to be voted onThe Nonprofit Act requires an association to provide to each member entitled to vote, notice of a meeting of members in a fair and reasonable manner, considering all the circumstances. The law provides certain safe harbor provisions, which means if a notice complies with those safe harbor provisions, the notice is automatically deemed fair and reasonable. But, different notice may also be fair and reasonable when all the circumstances are considered. (Section 16-6a-704(2)). The provision you quoted is one of those safe harbor provisions. So, if ...
Meeting notice, including matters to be voter onOK, RE: your answer 3 above, from 16-6a-704, (3) Notice is fair and reasonable if: …………………….. (b) “the notice of an annual or regular meeting includes a description of any matter or matters that: (i) must be approved by the members; or (ii) for which the members' approval is sought” 1. It sounds like nothing can be brought up for a vote at a meeting, unless it was announced in the meeting notice, correct? 2. Therefore, the HOA cannot, on the spur of the moment, call for a vote (in this example, to amend the CC&RS), if no mention of that was made ...
RE: Procedure for Amending CC&Rs1. If the association is incorporated as a Utah nonprofit corporation (as almost all are) then, no, the association cannot completely define what (a) and (b) are. The association must follow any requirements of the law in that regard. 2. So, as to #2, yes, the HOA must follow the Nonprofit Act. In lieu of a meeting, the association must use either a written ballot process or a petition/written consent process, as set forth in the Nonprofit Act. Or a combination of a written ballot and a meeting may be used, or just a meeting. 3. Yes. Amending ...
Procedure for Amending CC&RsIf the CC&Rs simply say the Declaration (CC&Rs) may be amended by an instrument signed by not less than 2/3 of the lot owners, but do NOT say a) what that instrument looks like, or b) the procedure to be used to obtain it… 1. Can the HOA simply define what (a) and (b) are? 2. Or must the HOA follow the Non-profit Act (using either mail in ballots or petition)? 3. Or can amending be accomplished by a simple vote at the annual meeting, where general purpose proxies are counted for those absent?
- 6.30.20 5:19pm
57-8-8.1. Equal treatment by rules required -- Limits on rules
Occupants limited on basis of sizeNo, Utah state law doesn't contain a maximum or minimum limit on the number of occupants in a condominium unit.
occupants limited on basis of size (57-8-8.1(309b)(ii)Is there anywhere else a maximum or minimum limit on size?
- 7.5.22 3:46pm
57-8a-104. Limitation on requirements for amending governing documents -- Limitation on contracts
Re: Voting RightsA voting right is a right to vote, specifically the right of a member to vote on association matters, including electing and recalling board members and other matters that are designated by law or the governing documents to be subject to an association vote. A voting right does not include procedural issues - that is, issues that specify how a vote is exercised. The use of a proxy is procedural and not a voting right.
Voting Rights(1)(b)(ii) says it doesn't apply to an amendment affecting only a lot owner's voting rights, but it seems like "voting rights" might be really broad. What exactly are a lot owner’s “voting rights”? Is the use of a proxy a "voting right"?
- 4.30.20 6:02pm
57-8a-209. Rental restrictions
RE: Abandonment / selective enforcement of rental restrictions?I must preface my comments with the caution that this particular topic (selective enforcement and similar issues) is very fact dependent. That means what's right in one situation may be wrong in another and vice versa. So, I advise against trying to apply general information and advice to a specific situation without the aid of a qualified attorney. 1. As a general matter, yes, unless the association has taken actions that would prevent it from doing so, such as if the HOA had sent a letter to the owner indicating that it would refrain from ...
Abandonment / selective enforcement of rental restrictions?A hypothetical case where an HOA has the typical rental restriction where a new owner must occupy his lot for 12 months before renting. An investor has bought, never occupied his lot, yet has rented (let's say for a few years), and the HOA has failed to enforce the rental restriction with the daily fine or other measures. 1. CAN the HOA begin enforcing now with that owner, after years of non-enforcement? 2. MUST the HOA begin enforcing now with that owner, even after years of non-enforcement? 3. If the HOA does not begin enforcing with that ...
- 6.12.20 6:25pm
57-8a-217. Association rules, including design criteria -- Requirements and limitations relating to board's action on rules and design criteria -- Vote of disapproval
Disapproving Enforcement ActionActions for enforcement of the rules and design criteria of the association
Disapproving Enforcement ActionCan the residents disapprove how the board is enforcing something?
- 10.22.18 4:03pm
57-8a-226. Board meetings -- Open Meetings
RE: 90 days to "get act together" for future meetingsThat is how I read the statute, yes. Although it’s possible for an HOA to remedy such a noncompliance of the notice requirement by holding the same meeting again and this time with prior notice to the requesting homeowner, that scenario is not the one necessarily contemplated by the statute, as discussed above. Rather, the HOA must comply going forward and is now on notice of that fact and the owner does not need to renew the initial request or the 90-day notice as a general matter.
90 days to "get act together" for future meetingsSo, any time in the future, after the 90 days, if the HOA again fails to comply as warned, the owner could file the described action in court, right?(No need for renewal, so to speak, of either the initial request, nor the warning?)
RE: What constitutes a "remedy"?In such a scenario, an association would remedy the noncompliance by providing notice to the owner of each subsequent board meeting after the 90-day notice. As you say, the damage is already done as to a prior meeting. It’s possible a board could remedy it by holding a new meeting and discussing and deciding the same things all over again from the prior meeting. But, the statute specifically says nothing in the statute shall affect the validity or enforceability of an action of a board. So, the statute does not require a board to deem a prior ...
What constitutes a "remedy"?If an HOA failed to notify an owner of a Board meeting, as he previously requested, and the owner emails the HOA a notice of non-compliance and demand for compliance, what does it mean for the HOA to “remedy the noncompliance during the 90-day period…?” The damage is already done (the owner missed that meeting).
- 6.22.20 4:23pm
57-8a-227. Records -- Availability for examination
RE: Good faith vs non-complianceThat will depend partly on whether or not the board knows about the amendments. Although, just because the board doesn't know about a past amendment doesn't necessarily mean they can rely on the excuse that they provided all the documents they knew about in good faith. It's possible that failing to be aware of and possess all of the association's governing documents could be a breach of a board member's fiduciary duties (such as the duty to discharge a board member's duties with the care an ordinarily prudent HOA board member would exercise under ...
Good faith vs non-complianceFor purposes of the per day penalty, is it considered a "good faith" error, or non-compliance if, upon request for governing documents, the HOA provides By-laws or CC&Rs that do not include amendments? (Thanks. Last question.)
RE: Do answers also apply to other records in Nonprofit Act?The $25/day penalty is imposed only if an HOA fails to fulfill an owner's records request for the declaration, bylaws, most recent approved minutes, or most recent budget and financial statement. If an owner properly requested that other HOA records (such as required by the Nonprofit Act) be delivered to the owner by email, and the HOA failed to provide them as required by the law, the owner could deliver the 10 day notice explaining the HOA's failure to comply with 57-8a-227(3)(b)(iii)(D) and the owner's request that the association email ...
Do answers also apply to other records in Nonprofit Act?Just to clarify: In addition, do your answers also apply to records the Nonprofit Act requires an HOA to keep, and an owner's email request that they be emailed to the owner? Thanks.
RE: HOA gives records late, but without the $25/day penaltyTo your first question, no, there is no maximum to the $25/day penalty imposed in Subsection (5) for failure of an HOA to provide on its website or at its registered office the declaration, bylaws, most recent approved minutes, and most recent budget and financial statement. As you state, the law does not specifically require the owner that made the request to follow up or do anything further other than what is specifically required in the statute. However, if the owner waits a long time for no apparent reason and without taking any other action ...
HOA gives records late, but without the $25/day penaltyThe law does not state any obligation for the one making the request to follow up in a certain number of days, with his 10 day notice of court action. So, is there no maximum to that $25/day penalty? (For example, a year after the request, can the owner give the HOA the 10 day notice that he plans to file in court, demanding the requested record, and the penalty of $25/day x 365 days?) If the HOA fulfills the records request, but does it late, without paying the $25/day, is the request still “unfulfilled,” and can the one making the request still ...
- 7.6.20 9:37am
Park West Condo v. Deppe (which law governs, strict compliance) '06
Each proposed actionYes. In this case, the proposed action is adopting new CC&Rs and bylaws (where various provisions are amended and various provisions may stay the same). As long as the new documents are presented to the owners so the owners can see and read what the new provisions say, then the requirement to "provide an opportunity to vote for or against each proposed action" is satisfied.
Action Without a Meeting - MembersSuppose an HOA Board of Trustees appoints a committee to "review and update" its CC&Rs and Bylaws. The committee, and ultimately the BOT, decide to completely rewrite them both, while making many changes to percentage requirements and the special assessment processes. The BOT then puts the whole package to a vote, without a meeting, and seeks a yes or no vote on the entire package. Does this satisfy 16-6a-709, (2), (b) "provide an opportunity to vote for or against each proposed action"?
- 11.23.21 8:54am
Reasonable Accommodations under the Fair Housing Act - Q & A
Number of Assistance AnimalsAn HOA must use the same decision-making process required by the law in evaluating a request, whether the request is for one assistance animal or for more than one (for example, a person has a disability-related need for two animals, or two people living together each have a disability-related need for a separate assistance animal). In short, no, an HOA can't place a blanket limitation on the number of assistance animals an owner may have, and an HOA may not deny a request based solely on the number of animals in the request. An HOA may only ...
In House Counsel HOACan an HOA limit the number of Assistance Animals an owner may have? Can an HOA limit the number of Service Animals an owner may have?
- 6.6.22 1:14pm