(1) A board may assess a fine against a lot owner for a violation of the association's governing documents in accordance with the provisions of this section.
(2) (a) Before assessing a fine under Subsection (1), the board shall give the lot owner a written warning that:
(i) describes the violation;
(ii) states the rule or provision of the association's governing documents that the lot owner's conduct violates;
(iii) states that the board may, in accordance with the provisions of this section, assess fines against the lot owner if a continuing violation is not cured or if the lot owner commits similar violations within one year after the day on which the board gives the lot owner the written warning or assesses a fine against the lot owner under this section; and
(iv) if the violation is a continuing violation, states a time that is not less than 48 hours after the day on which the board gives the lot owner the written warning by which the lot owner shall cure the violation.
(b) A board may assess a fine against a lot owner if:
(i) within one year after the day on which the board gives the lot owner a written warning described in Subsection (2)(a), the lot owner commits another violation of the same rule or provision identified in the written warning; or
(ii) for a continuing violation, the lot owner does not cure the violation within the time period that is stated in the written warning described in Subsection (2)(a).
(c) If permitted by the association's governing documents, after the board assesses a fine against a lot owner under this section, the board may, without further warning under this Subsection (2), assess an additional fine against the lot owner each time the lot owner:
(i) commits a violation of the same rule or provision within one year after the day on which the board assesses a fine for a violation of the same rule or provision; or
(ii) allows a violation to continue for 10 days or longer after the day on which the board assesses the fine.
(3) A fine assessed under Subsection (1) shall:
(a) be made only for a violation of a rule, covenant, condition, or restriction that is in the association's governing documents;
(b) be in the amount provided for in the association's governing documents; and
(c) accrue interest and late fees as provided in the association's governing documents.
(4) (a) A lot owner who is assessed a fine under Subsection (1) may request an informal hearing before the board to dispute the fine within 30 days after the day on which the lot owner receives noticefn1 that the fine is assessed.
(b) At a hearing described in Subsection (4)(a), the board shall:
(i) provide the lot owner a reasonable opportunity to present the lot owner's position to the board; and
(ii) allow the lot owner, a board member, or any other person involved in the hearing to participate in the hearing by means of electronic communication.
(c) If a lot owner timely requests an informal hearing under Subsection (4)(a), no interest or late fees may accrue until after the board conducts the hearing and the lot owner receives a final decision.
(5) A lot owner may appeal a fine assessed under Subsection (1) by initiating a civil action within 180 days after:
(a) if the lot owner timely requests an informal hearing under Subsection (4), the day on which the lot owner receives a final decision from the board; or
(b) if the lot owner does not timely request an informal hearing under Subsection (4), the day on which the time to request an informal hearing under Subsection (4) expires.fn2
(6) (a) Subject to Subsection (6)(b), a board may delegate the board's rights and responsibilities under this section to a managing agent.
(b) A board may not delegate the board's rights or responsibilities described in Subsection (4)(b).
(7) The provisions of this section apply to an association regardless of when the association is created.
Enacted 2006, ch. 243. Amended 2014, ch. 116, eff. May 13, 2014; Amended 2015, ch. 22, eff. May 12, 2015.
FN 1. See Section 57-8a-214 of this Act and Section 16-6a-103 of the Nonprofit Act regarding what constitutes sufficient notice and when notice is deemed effective. Section 57-8a-214(1) states: "Notice that an association provides by a method allowed under Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, constitutes fair and reasonable notice, regardless of whether or not the association is a nonprofit corporation." Thus, the Nonprofit Corporation Act applies as to notices that an association gives.
The Nonprofit Act, Section 16-6a-103 states: "(4) (a) Written notice by a . . . nonprofit corporation to its members, is effective as to each member when mailed, if: (i) in a comprehensible form; and (ii) addressed to the member's address shown in the domestic or foreign nonprofit corporation's current record of members. (b) If three successive notices given to a member pursuant to Subsection (5) have been returned as undeliverable, further notices to that member are not necessary until another address of the member is made known to the nonprofit corporation."
Presumably, once written notice is deemed "effective," it is also deemed "received," as required in subsection 57-8a-208(4)(a) above, and a lot owner desiring a hearing must request the hearing within 30 days from the day notice that the fine is assessed was mailed by the association.
FN 2. For when fines become a lien, see Section 57-8a-301(1)(a)(iii) (". . . an association has a lien on a lot for a fine . . . if: (A) the time for appeal described in Subsection 57-8a-208(5) has expired and the lot owner did not file an appeal").