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).
Open Meetings; Exception.
Utah Code 57-8-57 (for condos) and 57-8a-226 (for non-condo HOAs) require open board meetings, with the exception that executive sessions may be closed to the owners to:
- consult with an attorney for the purpose of obtaining legal advice,
- discuss ongoing litigation, mediation, arbitration, or administrative proceedings,
- discuss personnel matters,
- discuss contract negotiations, including review of a bid or proposal
- discuss delinquencies, and
- discuss a matter that involves an individual if the discussion is likely to cause the individual undue embarrassment or violate the individual's reasonable expectation of privacy.
Comment Period at Meetings.
Additionally, at each board meeting, the board must provide each owner a reasonable opportunity to offer comments, but the board may limit the comments to one specific time period during the meeting and may limit the time allotted to each owner to comment.
Notice of Meetings.
If an owner has requested notice of a board meeting, the association must give written notice of a board meeting at least 48 hours before a meeting to the owner who requested it, unless notice of the meeting is included in a meeting schedule that was previously provided to that owner, or the meeting is to address an emergency and each board member receives notice of the meeting less than 48 hours before the meeting.
The notice to the owner must (i) be delivered to the owner by email, to the email address that the owner provides to the association; (ii) state the time and date of the meeting; (iii) state the location of the meeting; and (iv) if a board member may participate by means of electronic communication provide the information necessary to allow the owner to participate by the available means of electronic communication.
Exactly What Constitutes a Board Meeting?
A board “meeting” means “a gathering of a board, whether in person or by means of electronic communication, at which the board can take binding action.” (Utah Code 57-8a-102(16), 57-8-3(27)). “Means of electronic communication” means an electronic system that allows individuals to communicate orally in real time, including web conferencing, video conferencing, and telephone conferencing (Utah Code 57-8a-102(15), 57-8-3(26)).
Action/decisions without a Meeting.
A meeting requires a gathering of the board in a way that they are communicating live and in real time. It does not include actions or decisions taken without a meeting, as is commonly done by boards (most commonly through email). However, specific requirements must be followed by a board in order to take an action (make a decision) without a meeting. These requirements are spelled out in Utah Code Section 16-6a-813 (for associations that are nonprofit corporations).
Specifically, a board can make a decision and take an action without a meeting if either:
- unanimously agreed, that is, all the board members consent to (vote for) the action in writing (such as by email), or
- if notice of the vote is sent to each board member and no board member demands that action not be taken without a meeting. Note that the action/decision must receive the number of votes that would be necessary at a meeting at which of the directors are present - typically a majority.
The notice of the vote mentioned in (2) must be sent to each member of the board stating: (i) what the vote is about (the action to be taken), (ii) a deadline for directors to respond, and (iii) that failure to respond by the deadline will have the same effect as abstaining and not demanding that action not be taken without a meeting.
The law requires associations to keep a permanent record of the actions the members and the board take without a meeting. (Utah Code Section 16-6a-1601). Email is a good method if the notice and the responses from board members are all saved to the association's records, whether to an online storage service like Dropbox, an association email account, or even printed out, as long as they are kept as permanent records of the association and in a written form (which includes electronic).
The law stipulates certain penalties and procedures if an association does not comply. Essentially, an owner can make demand for compliance on the association stating which requirements the association has failed to comply with. Then, if 90 days elapses without compliance after a proper demand, the owner may file an action in court for a court order requiring the association to comply and to pay a $500 penalty. The court may also require that the prevailing party be reimbursed its costs and attorney fees by the non-prevailing party.
Declarant/developer Controlled Associations.
The open meetings laws do not apply to associations that are still under “declarant” (developer) control (where the declarant appoints the board), except the Community Association Act (but, inexplicably not the Condo Act) requires that during the period of declarant control, the association must hold at least one board meeting a year as well as each time the association increases a fee or raises an assessment where the open meeting requirements of Section 57-8a-226, subsections (1) through (3) will apply to such a board meeting. Those requirements are:
- The board must give 48 hours’ notice of board meetings to each owner who requests it, unless the meeting was provided for in a meeting schedule previously provided to the owner, or unless the meeting is to address an emergency.
- The board meeting must be open to each owner, except for specific reasons (such as to discuss ongoing litigation or delinquent assessments).
- The board must provide each owner an opportunity to offer comments at the board meeting.
By Curtis G. Kimble