FN 1. *Superseded in large part in 2023.  The question of whether the Act applies to associations formed before the Act's enactment was made moot for the most part by an amendment to Section 57-8a-105 in 2023 that states that the Act applies to an association that registers with the Utah HOA Registry.  Section 57-8a-105 specifically requires all associations to register with the Utah HOA Registry and states that it applies to all associations regardless of when formed.  So an association cannot fail to register or renew or update its registration in an attempt to claim the Act does not apply to the association without violating the law.  See Section 57-8a-105(8) ("Unless otherwise expressly exempted, this chapter applies to an association that registers, or renews or updates the association's registration, with the department under this section. This section applies to an association regardless of when the association is created.")  

FN 2.  This statute appears to be an attempt to address the principles of the law that: (1) statutes are not to be retroactively applied or given retroactive effect, unless the statute is expressly declared to be retroactive (Utah Code Section 68-3-3), and (2) that "[n]o bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be passed." (Utah Constitution, Article I, Section 18).

However, the application of those principles (of retroactivity and impairing contracts) to a given statute and a given association is not a simple matter and it would be incorrect for a person to make the blanket assertion that all statutes enacted before an association was created do not apply to the association.  Thus, rather than providing guidance as to the applicability of this Act to pre-existing associations, this statute only serves to confuse the issue.  Most associations will simply take the law at face value and assume the law in effect today applies to them - and so they should.  To argue anything else is to enter a deep rabbit hole. 

Statutes are applied retroactively when they are made applicable to a time period before the statute's effective date.  Although legislation cannot take effect prior to the enactment of the legislation, in limited circumstances it can be given retrospective operation to an earlier date.  Utah Code provides that no statute is retroactive "unless expressly so declared."  Although emphasizing that statutes are generally not retroactive unless expressly made retroactive, the Utah Supreme Court has recognized exceptions to the general rule for clarifying amendments or procedural remedial statutes that do not enlarge, eliminate, or destroy vested rights.

An association must take great care before taking the aggressive position that a given statute does not apply to the association.  For instance, Section 57-8a-215 "Budget" was enacted in 2011.  It authorizes the lot owners in an an association to disapprove a budget if certain procedures are followed.  Say an association was formed in 1995.  In 2017, the lot owners comply with the procedures in the statute and disapprove a budget adopted by the board because the budget provided for a steep increase in monthly dues.  It would be a very tenuous position for the board to assert that this statute does not apply to the association and to follow through in adopting the disapproved budget and collecting assessments assessed according to that budget.  This situation does not involve applying the statute to a time period before the statute's effective date because the time period at issue is 2017, six years after the statute was enacted.  Additionally, the statute is arguably a procedural remedial statute that does not enlarge, eliminate, or destroy vested rights. 

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