57-8a-107. Amending the declaration to make provisions of this chapter applicable

(1) An association may amend the declaration to make applicable to the association a provision of this chapter that is enacted after the creation of the associationfn1, by complying with:
      (a) the amendment procedures and requirements specified in the declaration and applicable provisions of this chapter; or
      (b) the amendment procedures and requirements of this chapter, if the declaration being amended does not contain amendment procedures and requirements.

(2) If an amendment under Subsection (1) adopts a specific section of this chapter:
      (a) the amendment grants a right, power, or privilege permitted by that specific section; and
      (b) all correlative obligations, liabilities, and restrictions in that section also apply.

 Enacted 2013 ch. 152, eff. July 1, 2014 (see line 1294 of SB 90 (2013)).

FN 1.  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 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, the statute only serves to confuse this 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 rabbit hole that runs very deep. 

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.

All content is informational only and never to be construed as legal advice. Always consult an attorney for legal advice applicable to your situation. 

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