New 2014 Utah HOA Laws

May 16, 2014

By Curtis G. Kimble.

A few new HOA laws went into effect earlier this week on May 13.  They are not too substantial and shouldn’t significantly alter your way of doing business, but they’re important to know about and comply with.

1.    S.B. 147 deals with rental restrictions.

This bill amended Utah Code Section 57-8-10 and enacted 57-8-10.1 in the Condo Act, and amended 57-8a-209 in the Community Association Act.  It prohibits an association from requiring a homeowner to:

A.  obtain the association’s approval of a prospective renter; or

B.  give the association:
(i) a copy of a rental application;
(ii) a copy of a renter’s or prospective renter’s credit information or credit report;
(iii) a copy of a renter’s or prospective renter’s background check; or
(iv) documentation to verify the renter’s age.

There is an exception if the association’s CC&Rs “prohibits or restricts occupancy of the lots by a certain class of individuals, the association may require a lot owner who owns a rental lot to give the association” those items in B above.  So, for instance, a 55 and older community could require a homeowner to give the association documentation to verify that at least one occupant is 55 or older.

2.    H.B. 26 deals with fines.

This bill amended Utah Code Sections 57-8a-208 and 57-8a-301 in the Community Association Act, and made a minor change in 57-8-37 and 57-8-44 in the Condo Act.

Appealing a Fine.  In the Community Association Act, it limits how and when an owner can appeal a fine that’s levied against the owner.  An owner has 30 days to request a hearing after a fine is levied, and then the owner has up to 6 months to appeal the fine by bringing a court action to challenge the fine.

When the Fine Becomes a Lien.  It further requires that a fine does not become a lien against a lot until, basically, seven months after the fine is levied (because the owner has 30 days to request a hearing before the board and then 180 days after that to bring a court action).   If, after that time, the owner has not sued to challenge the fine in court, the fine becomes a lien against the owner’s lot (if the owner has sued within that time, the fine does not become a lien until the court action is over).    Previously, the owner only had 14 days to request a hearing, an unpaid fine became a lien just like assessments (no 6-7 month waiting period), and the owner was not limited in the time they had to file a lawsuit to challenge the fine.

Condos.  There is nothing much new for condos.  The Condo Act already required that a fine does not become a lien against a unit until, basically, seven months after the fine is levied (because the owner has 30 days to request a hearing before the board and then 180 days after that to bring a court action) and limited an owner to a 6 month period to challenge the fine in court, but it’s now clear that if the owner has sued within that time, the fine does not become a lien until the court action is over.

3.    H.B. 350 deals with removal of board members.

This bill amended Utah Code Section 16-6a-808 in the Nonprofit Corporation Act.  This section provides the requirements to remove a board member (director) from office.  The old section was problematic because (a) it didn’t defer to the association’s bylaws if the bylaws provided a different method for removing a director (the Nonprofit Act should let associations decide for themselves how they want certain things handled and should simply be a default where an association’s bylaws are silent on an issue), and (b) it led to a great deal of confusion because it was not clear how many votes were necessary to remove a director when directors were elected by a plurality vote (where the candidates receiving the most votes win).  Most homeowner associations use plurality voting for electing directors.

The new law states that “unless otherwise provided in the bylaws,” a director may be removed by the vote of a majority of the members entitled to vote.  So, the provisions in your bylaws will govern and apply first and foremost, but it your bylaws are silent, more than 50% of the members have to vote to remove a director in order for that director to be removed from office.

The Utah HOA Law App has been updated with all the new laws and will automatically update on your iphone or Android device when you open the app.  iPad app users will have to update the app itself, which should be available in the App Store in the next week or two.


Ever Wanted to Read a Court’s Perspective on HOA Drama?

June 13, 2013

By Curtis G. Kimble.

Are you interested in seeing how HOA conflicts unfold and are resolved by the Utah Court of Appeals and Supreme Court?  Whether you like the stories of the people and the interesting circumstances, or you like to know the law handed down from Utah’s highest courts regarding HOAs, RKW’s Utah HOA Law app lets you read the HOA case law decided over the years in Utah on your tablet or phone.  The latest update to the app contains select Utah HOA case law, and even includes concise summaries by RKW of certain cases.

One such case from 2002 showed how an agreement between a unit owner and the association to decrease monthly assessments as to only that owner was unenforceable:

Every unit owner in Canyon Road Towers is obligated to pay his or her proportionate share of the common expenses as a monthly assessment. The proportionate share of common expenses is directly tied to the undivided ownership interest that an owner has in the common areas, as required by Utah law for condominiums.  In any condominium project, each unit’s undivided ownership interest is stated in the declaration (CC&Rs).   In negotiating the purchase of a unit, the Johannessens learned that the unit the wanted had a 1.282 percent ownership interest in the common areas, which was higher than the interest assigned to other units (because it was the penthouse unit and had unique features and so forth).  The higher undivided interest of course meant a larger monthly assessment.

The Johannessens got the management committee (the board in a condo) to agree to decrease their assessment, but they did so without a vote of the owners and an amendment to the CC&Rs.  The Johannessens enjoyed the decreased assessment amount for a few years, until something must have happened that woke the management committee up and they began assessing the Johannessens based on their undivided interest.  Of course, the Johannessens sued.

Utah law requires a vote of the unit owners before the ownership interest of any unit owner can be changed.  “A reduction in the monthly assessment paid by any unit owner alters the ownership interest of that unit, and in turn, alters the ownership interest and assessment fees of all other units in the complex.  The facts are undisputed that the Association did not obtain the consent of all the unit owners before it reduced the Johannessens’ monthly assessment,” the court stated.  Thus, the association violated the law when it decreased the assessment for the Johannessens.

Granted, it’s not Harry Potter or Fifty Shades of Grey, and it’s not everyone’s cup of tea, but if you enjoy a court’s perspective on covenants, conflicts, parking, procedure, voting, assessments, and other HOA issues, our app has you covered.

In the case above, the court noted that the association did not obtain the consent of all unit owners because that’s what the law at that time stated.  Today, the Condo Act states that approval of 2/3rds of the unit owners is required, rather than all owners.  This is an example of the fact that a court’s ruling on an issue is often limited to the specific facts of that case and trying to apply the court’s ruling to other facts and circumstances should only be done with the advice of an attorney.  I know it sounds self serving, but really it’s that a little knowledge of the law can be more dangerous than no knowledge if used incorrectly.

One new law, or change to the law, rather, that I haven’t mentioned before is in the statute regarding towing.  Prior to May 14, an HOA with “multifamily dwellings of more than eight units” didn’t have to have signs where parking was subject to towing if parking in that location was prohibited by CC&Rs (or other contract).  That law was changed this year and that exception was deleted.

Now, state law requires that a tow truck operator may not tow without the vehicle owner’s knowledge at “multifamily dwellings of more than eight units” without signage that displays both (1) where parking is subject to towing, and (2) the website that provides access to towing database information, or the name and phone number of the tow truck operator, or the name and phone number of the HOA that authorized the vehicle to be towed.  There is an exception.  Such signs aren’t needed when a vehicle is parked in a location that is prohibited by law or “if it is reasonably apparent that the location is not open to parking” (by a red painted curb, or on a lawn or sidewalk, for instance).

The latest update to the app came out just before the new Utah HOA laws went into effect on May 14.  Make sure to download the update if you haven’t already so you have the current version of the laws.  A future update will contain the new laws that were passed that go into effect in 2014 (July 1, 2014).


Bills That Passed This Legislative Session and How to Comply

March 26, 2013

By Curtis G. Kimble.

The 2013 Utah General Legislative Session has ended and the bills that passed have been finalized in their enrolled form to await signature by the Governor. Which bills passed and which ones didn’t?

Only three of the six bills I discussed in my last post ended up passing the House and the Senate.  They all affect condo and non-condo HOAs in more or less the same way.

SB 64 Homeowner Association Reserve Account Amendments

As I noted before, this law will give the decision back to the board of whether and how to fund a reserve (as most CC&Rs require, and where the decision makers will be subject to fiduciary duties).  Specifically, the law:

  • Specifies that a reserve analysis must include certain things, such as a list of the maintenance items that will require reserve funds,  their remaining useful life, and their cost to repair or replace; an estimate of the contribution to a reserve fund necessary to meet the cost to repair or replace each component; and a reserve funding plan that recommends how the association may fund the annual contribution.
  • Requires an association to provide a summary each year of the reserve analysis to each owner (not just to those at the annual meeting) and a complete copy of the reserve analysis, including any updates, to an owner upon request.
  • Requires the board to include a reserve fund line item in the annual budget in the amount the board determines based on the reserve analysis and based on what “the board determines is prudent under the circumstances” (there is no requirement that the amount be higher than 1$ or even 0$ – not that I recommend that).  This is important because it is almost inevitable that the association will not agree with the amounts recommended by a professional reserve study.  Almost every association feels that their reserve professional has recommended that they set aside more than they really need.  This law allows flexibility so the board can fund reserves in the amount they deem is prudent with all things considered.   However, if the CC&Rs requires a certain level of reserve funding, the CC&Rs will control; this law does not authorize a board to fund reserves lower than what their governing documents might require.
  • Allows the homeowners to veto the reserve fund contribution if they don’t like it (whether too low or too high) by a 51% vote of the owners at a special meeting called within 45 days of when the annual budget is adopted.

Additionally, the law provides for specific enforcement procedures if the association fails to comply with certain of its provisions.  An owner can sue for a court order compelling the association to comply, for $500 or the owner’s actual damages, whichever is greater, other available remedies, and costs and attorney fees.

HB 101 Homeowners Association Amendments

This revision to the statute requiring all HOAs to register as an HOA with the state of Utah merely restates what it said before in a little different way. There is no change in the law’s requirements or implications.

SB 90 Condominium and Community Association Amendments

  • With this new law, an association cannot charge a fee for review and approval of plans for construction or improvement of a unit or lot that exceeds the actual cost of reviewing and approving the plans.
  • The law clarifies what happens when there’s a loss to a unit that initially doesn’t look like it will exceed the association’s deductible but then the loss ends up costing more than the amount of the deductible.  The law says that if the board determines that a covered loss is likely not to exceed the deductible, and until it becomes apparent the loss exceeds the deductible and a claim is submitted to the association’s insurer, the unit owner’s policy is the primary policy for coverage.  So, the unit owner’s policy is primary, but only until it becomes clear that the damage will cost more to repair than the deductible.
  • For commercial condominium projects ( projects with no residential units), the insurance requirements of Utah Code 57-8-43 no longer apply for insurance policies issued or renewed after July 1, 2013.  For mixed-use projects (projects with both commercial and residential units), a commercial unit, including any fixture, improvement or betterment therein and including appurtenant limited common area, does not have to be insured by the association, unless the CC&Rs require it.
  • The Community Association Act is now applicable to any association with at least one residential lot (not just associations made up entirely of residential lots).  So, it will generally apply to mixed-use (commercial/residential) projects (except the insurance provisions were amended to not be applicable to commercial lots, the same as with condominium projects).

The following changes will not take effect until July 1, 2014:

  • The law will now authorize not only condos, but non-condo HOAs as well to access a unit or lot as necessary for maintenance, repair or replacement of common areas or for making an emergency repair, provided that 24 hours’ notice is given, or reasonable notice is given (or attempted) in an emergency.  The association is liable to repair damage it causes to the common areas or to a lot or unit the association uses to access common areas, and it must repair that damage within a reasonable time, except in developer-controlled community associations (where many of the laws in the Community Association Act don’t apply, thanks to legislators favoring developers much more than homeowners (contact your legislator and let them know favoring developers over homeowners isn’t acceptable!)).
  • The law authorizes a unit or lot owner to remove or alter a wall between two units or lots if the owner owns both units/lots, even if the wall is common area, unless restricted by the CC&Rs (most condo CC&Rs do, in fact, restrict this) and unless it would impair the structural integrity, mechanical systems or support of the building, the common areas, or a unit/lot.  The board may require the owner to submit, at the owner’s expense, an engineer’s or architect’s opinion stating that a proposed change will not impair the structural integrity or mechanical systems of the building or either lot, reduce the support or integrity of common areas, or compromise structural components.  The board may require the owner to pay all of the association’s legal and other expenses related to the proposed alteration, as well.  The removal or alteration of the wall does not change the assessment or voting right attributable to either of the units/lots (unless the CC&Rs say so).
  • The law also contains a procedure for the unlikely event that two or more associations want to consolidate or merge together into one association.

While these bills are not actually law until signed by the Governor, there is little chance that the Governor will veto any of them (I will, of course, let you know if he does).   (UPDATE: Each of these bills were signed by the Governor and are now law.)   The laws take effect May 14, 2013, except the ones mentioned above that don’t take effect until July 1, 2014.

As always, please note that none of the above is legal advice and should not be relied on as statements of the requirements of the law applicable to any particular scenario or circumstance.  The statutes themselves should be referred to for their exact and full contents and an attorney consulted with for application of any relevant law to a particular set of facts.


Last Week of Legislative Session: What’s in Store?

March 11, 2013

By Curtis G. Kimble.

It’s the last week of the Utah 2013 general legislative session, which is set to end Thursday, March 14, at midnight, and there are a few HOA bills on the path to becoming law.  Here’s a summary and update on where they are in the process:

HB 335 Condominium Owner Rental Amendments

HB 335 would amend the Condo Act to state a condominium project that recorded its initial declaration before May 12, 2009, would not be able to prohibit or restrict a unit owner’s ability to rent to any greater extent than is described in the declaration that was recorded at the time the unit owner purchased the unit owner’s unit, unless the association obtains the unit owner’s written consent.

This bill is in the House Rules Committee where it has been for a few weeks. This bill will not pass this session.

SB 64 1st sub Homeowner Association Reserve Account Amendments

This substituted version of SB 64 is completely different than the original version (see my prior post).  The most important part of this bill, in my opinion, is that now the decision of whether and how to fund a reserve is back where it belongs. If passed, this version of the law will put that decision back to the board (as most CC&Rs require, and where the decision will be subject to the fiduciary obligations of the decision makers).  This bill would also allow the homeowners to veto the reserve fund contribution  if they don’t like it (whether too low or too high) by a 51% vote of the owners at a special meeting.

Additionally, this bill provides for specific enforcement procedures if the association fails to comply with certain of its provisions.  The association will be required to provide a summary each year of the reserve analysis to each owner (not just at the annual meeting) and a complete copy of the reserve analysis to an owner upon request.  The board also has to include a reserve fund line item in the annual budget in the amount the board determines and the homeowners can veto that determination (as discussed above).

If an association fails to comply, an owner can sue for a court order compelling the association to comply, for $500 or the owner’s actual damages, whichever is greater, other available remedies, and costs and attorney fees.

This bill has passed through the Senate, though the House committee, and is in the House for a vote.  My guess is that this bill will pass, depending on the calendar.

SB 90 1st sub Condominium and Community Association Amendments

SB 90 1st sub changes which associations the Community Association Act applies to.  It currently only applies to wholly residential associations (associations where each member is an owner of a residential lot).  This bill makes the Act applicable to any association with at least one residential lot.  So, it will apply to mixed-use (commercial/residential) projects with at least one residential lot.

The bill states that, unless otherwise provided in the CC&Rs, developers essentially have control of the association for eternity (that is, for seven years after all declarants have ceased to offer lots for sale in the ordinary course of business (compare this with the Condo Act where it’s 3 years after recording the CC&Rs for a typical project)), or 60 days after 75% of the lots that may be created are sold, whichever happens first.

This bill contains changes to the reserve analysis law, as well, which are very similar to SB 64 1st sub (minus the veto and enforcement provisions).

The bill enacts some provisions relating to making changes to adjoining units or lots acquired by same owner, and relating to the consolidation or merger of associations (i.e., a procedure for merging, if two associations wanted to merge or consolidate).

Finally, the bill cleans up the insurance provisions in the Condo Act and Community Association Act and exempts commercial condominiums and lots from its requirements.

This bill has passed the Senate and is now on its way to the House.  Whether it can get through the House in time is anybody’s guess, but my bet is that it will.

SB 274 Condominium Foreclosure Amendments

SB 274 would require a bank or lender to pay a unit or lot’s share of certain common expenses from the time the lender starts the foreclosure process (by filing a notice of default) on a unit or lot.   Many banks start the foreclosure process and then wait for months and sometimes years before completing it, even if the homeowner has given up and long since moved out.  Meanwhile, the association still has to carry applicable insurance and carry out maintenance benefiting the unit or lot.  The bank won’t foreclose because they don’t want to have to start paying assessments.  This bill would address the problem to a small degree by requiring the bank to pay the unit or lots share of “landscaping maintenance in the common areas, water and insurance.”

If this bill gets through the banking lobby, I’d be amazed, but it has passed favorably out of committee and is on the Senate calendar for vote.

HB 101 1st sub Homeowners Association Amendments

The statute requiring all HOAs to register as an HOA with the state of Utah is being merely clarified once again with this bill.   There is no change in its requirements or implications.  It passed the Senate and House.

SB 262 Employment and Housing Antidiscrimination Amendments

SB 262 modifies the Utah Fair Housing Act, which is important for HOAs because the Fair Housing Act prohibits an HOA from discriminating against certain “protected classes” of people in its rules, covenants or practices.  If this bill passes, it would prohibit discrimination based on sexual orientation or gender identity.  Specifically, the bill states (the underlined language is new language):  “It is a discriminatory housing practice to do any of the following because of a person’s race, color, religion, sex, national origin, familial status, source of income, [or] disability, sexual orientation, or gender identity: . . . deny or make unavailable [any] a dwelling from any person; (b) discriminate against [any] a person in the terms, conditions, or privileges: (i) of the sale or rental of [any] a dwelling; or (ii) in providing facilities or services in connection with the dwelling; . . ..”

This bill passed out of the Senate committee with a favorable recommendation and is on the reading calendar of the Senate (to be voted on).

I’ll let you know which bills pass this session after it ends.


Utah LAC Issues Statement on SB 64 (Reserves)

February 22, 2013

By Curtis G. Kimble.

As many of you may know, the 2013 General Session of the Utah Legislature is in full swing on Capitol Hill.  A few bills enacting or amending HOA laws are in the works and I’ll be summarizing and commenting on those over the next couple of weeks.

As to one such bill, SB 64, CAI’s Utah Legislative Action Committee issued a position statement today coming down quite aggressively against it.  SB 64 amends the reserve funding requirements of Utah Code Sections 57-8-7.5 and 57-8a-211 and, if passed, will require an association to begin funding the reserve fund in the manner and amount determined by the vote of the owners within 90 days after the vote, and to file a certificate of compliance with the Department of Commerce within 30 days of starting to fund a reserve fund.  It also requires that if an association does not file a certificate of compliance within the required 30 days, the association may not levy a special assessment until it files a certificate of compliance.  View SB 64 here.  View the position statement here (I am not a member of ULAC and their position is not necessarily mine, nor mine theirs).

UPDATE March 1: view the substitute bill SB 64 here and a comparison of the changes to the original SB 64 here.

The original requirement of this law requiring the decision of whether to fund a reserve account to be made by a majority of those owners who happen to show up at the annual meeting, is one that I’ve always been opposed to for various reasons, not the least of which is that it unconstitutionally interferes with the obligation contained almost universally in preexisting HOA contracts (CC&Rs) that the board establish a reasonable reserve.  For reasons similar to those contained in the ULAC position statement, I am opposed to SB 64, as well.

If you have an opinion one way or the other on pending legislation, don’t be afraid to voice it to your representatives in the Legislature.  Follow this link to identify who they are and contact them: Utah State District Maps


Our New Utah HOA Law App Helps Associations Follow the Law

December 6, 2012

Up until a few years ago, it seems that a board could get away with not referencing the Utah statutes that apply to HOAs.  Especially in non-condo HOAs, there just weren’t a lot of issues addressed by Utah law, except the procedural and corporate issues set out in the Nonprofit Corporation Act.

But today, the landscape is different.  Many day to day issues, such as adoption and enforcement of rules, spending reserve money, records, providing payoffs, insurance, budgets, and so forth are now addressed in the law and their requirements are not optional.  They must be followed or an association risks expensive litigation and other disputes, especially in today’s  increasingly litigious climate for HOAs, where a technicality or trivial failure of association procedure can lead to a major and costly headache.

As part of Richards, Kimble and Winn’s commitment to provide real value to its clients and to help all community associations operate effectively and properly, RKW brings you a free app for your smartphone and tablet that provides quick reference to the laws that apply to your association.

Now the laws are available right in your pocket, no Internet connection required!  The statutes are formatted and indented for easier reading than the State’s own website, plus search and bookmark functions make it much easier and quicker to use.  Certain federal regulations applicable to HOAs, such as Fair Housing Act and satellite dish regulations are also included, together with summaries and explanations of those requirements.

Utah HOA Law App Now Available.  Access the Web App online, or download the app to your mobile device today for free!

Click below or search Utah HOA Law in the Apple App Store or on Google Play.  iPad users be sure to download the “Utah HOA Law HD” version, instead of the iPhone version.

Utah HOA Law for iPhone, iPod:

Utah HOA Law HD for iPad:

Utah HOA Law for Android:
Android app on Google Play

Utah HOA Law for Kindle Fire:

Screenshot

Utah HOA Law App


Pop Quiz on New Utah HOA Laws

August 16, 2012

By Curtis G. Kimble.

Many changes were enacted to the laws that govern HOAs in Utah in 2011. We tested your knowledge a year ago soon after the changes went into effect.  How is your knowledge of these changes over a year later?  Take this short quiz and find out (answers at very bottom).

There’s no need to click submit, unless you’d like to print your answers, in which case, click submit and then when you click print below, it should print your answers.

Don’t look below until you’ve finished!  Warning – answers below!

Now grade yourself.  Here are the answers:

1.  False, only condominiums are governed by the Utah Condominium Ownership Act.

2.  14 days

3.  may not . . . may.

4.  D.  all of the above

5.  all of the above

6.  True, except as to a member who has made written demand to the association to provide notice to the member by mail

Thanks for playing!


Don’t Forget to Conduct a Reserve Analysis by July 1!

June 12, 2012

By Curtis G. Kimble.

The deadline for all HOA and condominium boards in Utah to conduct a “reserve analysis” is fast approaching.  By July 1, every  board (except developer-controlled boards) needs to obtain or perform a reserve analysis if no reserve analysis has been conducted since March 1, 2008.

A reserve analysis is an analysis to determine:

(a)     the need for a reserve fund to accumulate money to cover the cost of repairing, replacing, and restoring common areas and facilities that have a useful life of three years or more, but excluding any cost that can reasonably be funded from the general budget or other funds of the association; and

(b)     the appropriate amount of any reserve fund.

So, each board must:

  1. determine which improvements have a useful life of 3 years or more, then
  2. determine what the cost is for maintaining those improvements over the next several years, and then
  3. determine what they think the appropriate amount of the reserve fund should be.

There are no requirements in the law as to who has to perform the reserve analysis.  So, a board can perform the analysis or it can engage a professional to perform it.  There are several competent reserve study professionals serving the state of Utah.  There are also websites that will create your reserve study for you based on your input, and some will allow users to run “what if” scenarios with their components and funding plans.  A simple Google search will lead to those sites (I cannot vouch for the quality or value of such online services since I’ve never personally used them or analyzed their results).

There are many options when it comes to fulfilling the requirements of this law.  Each association should find the option that works best for them.

Don’t forget the law also requires each board to, annually, present the reserve study to the homeowners at the annual homeowner meeting or at a special meeting of the homeowners, and provide an opportunity for homeowners to discuss reserves and to vote on whether to fund a reserve fund and, if so, how to fund it and in what amount.  The association must also prepare and keep minutes of the meeting and indicate in the minutes any decision relating to funding a reserve fund.


The Results Are In: The 2012 Utah Legislative Session

March 8, 2012

By Curtis G. Kimble.

The 2012 general session of the Utah Legislature ends tonight at midnight and only one small change to a current law and no new laws affecting condominiums and homeowners associations were passed this year.  This is probably welcome news to the many boards and management committees that were likely more than a little overwhelmed by last year’s many changes.

The only change this year is to the law regarding reserve studies.  A board is required to conduct a reserve study every five years and to review and update it every two years.  But, when S.B. 56 goes into effect on May 8 of this year (assuming it’s signed by the Governor), a board will only have to conduct a reserve study every six years and review and update it every three years.  While industry professionals generally agree that a reserve study should be updated more frequently than that, even annually, and many states require an annual review and update of a reserve study, this change to the law will take some pressure off boards.

No other new laws or changes affecting condos and HOAs will go into effect this year.  Next year, expect to see more significant changes proposed that haven’t been seen yet.  I have a feeling we can also expect to see that Ombudsman bill (H.B. 56) that I explained here proposed yet again.


The Ups and Downs of the 2012 Utah Legislative Session

February 17, 2012

By Curtis G. Kimble.

As many of you know, we’re right in the middle of the the 2012 general session of the Utah Legislature, which is January 23 to March 8.

So far, the bills being proposed relating to HOAs are fairly minor, with one or two exceptions:

1.  H.B. 56 (the Ombudsman bill) proposes to require every Utah HOA (both condo and non-condo HOAs) to pay 2$ per unit or lot annually to yet another government bureaucracy, the Utah Office of the Property Rights Ombudsman.  The Ombudsman Office would be authorized to represent and advise a unit or lot owner who has a dispute with his or her homeowners association and force the association to mediate or arbitrate the dispute.  So, every unit and lot owner in Utah will be paying for these disputes, whether they’re involved or not.

Unfortunately, this bill is attempting to impose a mandatory solution that just doesn’t work.  There are already better remedies to the problem the bill is attempting to address.  Utah homeowners associations don’t need yet another tax or fee to deplete their already suffering budgets in this foreclosure ridden economy, especially for a program that will likely be less effective and more expensive than other solutions.   Yet another government bureaucracy simply isn’t the answer in this situation.

For more information on this bill, and for comments by our own John Richards, check out this article at the ParkRecord.com: “HOAs and condo owners at odds - Legislation heats debate on how HOAs handle owner disputes”

For the reasons above, I give H.B. 56 the thumbs down.

Other proposed bills include:

Thumbs Up   2.  H.B. 275 (Seismic Requirements for Condominium Conversion Projects) which requires the owner of a structure two or more stories high, and which was built before 1975, to cause a seismic evaluation of the structure to be performed if the owner converts the structure to a condominium.  Because the risk of collapse of a structure should be discovered and disclosed or fixed before selling converted condominiums, I give this bill the thumbs up.

3.  H.B. 406 (Homeowner Association Registration Amendments) which does virtually nothing.  The current law requiring every HOA to register with the state as an HOA gives an HOA 90 days to update its information with the state when any of the information changes or becomes outdated (e.g., the HOA changes property managers).

This bill says that an HOA that hasn’t updated is still in compliance with the law until that 90 days is up, as if that wasn’t already clear.  Why else would the 90 days have been given if it wasn’t as a safe harbor?  The answer is it wouldn’t have been.  If you weren’t in compliance the minute your information changed but before you updated your info with the state, there would be no point in giving 90 days to update your information.  Because this bill doesn’t change anything whether it passes or not, I don’t give it a thumbs up or a thumbs down.

Thumbs Down

4.  Finally, S.B. 56 (Homeowner Association Reserve Account Amendments) amends the current reserve analysis law by changing the required frequency of a reserve analysis (or reserve study) and the review and update of that reserve analysis.  The current requirement is to cause a reserve analysis to be conducted every five years and reviewed (and updated, if necessary) every two years.  S.B. 56 would require a reserve analysis to be conducted every six years and reviewed (and updated, if necessary) every three years.

This would fix what some might see as a mismatch of years between the analysis and the review and update in the current law so it would be more spread out.  However, in our experience, more frequent review and update of a reserve study is generally good practice and necessary, not less.  So, always remember, this law is only intended to establish a minimum requirement and every association should decide on their own what they need to be doing to protect the investments of their homes and the long term viability of their common area improvements and infrastructure.

Because this bill falls short of fixing the problems with the current law noted in my blog post here (link), I give it the thumbs down.

I know other bills are out there in the works (for better or for worse) that may or may not be run this legislative session.  I’ll provide updates as the legislative session progresses.


Home Ownership and Second Hand Smoke: the American Dream or a Health Nightmare?

January 20, 2012

By Curtis G. Kimble.

How far can a government or an HOA go to dictate what can and can’t be done inside of a homeowners own home? Is an owner of an attached dwelling or a condominium unit able to do whatever they want within the confines of their home as long as it’s not illegal? Is a homeowner entitled to create and distribute from their home a “Class A” carcinogenic substance, which causes cancer and respiratory diseases and disorders, among other problems and which is able to infiltrate neighboring homes?

This is a question being increasingly asked in other states where some state courts have held that smoke transferring between units is a nuisance. But others have determined that the cigarette smoke is like an odor intrusion, a condition of living in a community environment that residents simply have to put up with – a startlingly misguided mentality considering the fact that the EPA has determined that there is no acceptable level of exposure to Class A carcinogens, and considering that second hand smoke causes serious problems for children, including ear problems, middle ear disease, acute respiratory infections, wheeze illness, slowed lung growth, and more severe asthma, and that 430 American newborns die each year from Sudden Infant Death Syndrome (SIDS) caused by second hand smoke.

Incentives offered by the Federal Government have led cities from Austin to Boston to prohibit smoking in public housing. In 2006, a judge ruled that secondhand smoke could be a breach of “warranty of habitability” under New York law.  At least six California cities and counties have banned smoking in all condo units.

Fortunately for Utah residents who don’t appreciate dangerous and toxic chemicals being forced down their breathing passages, Utah law clearly states that smoke transferring between dwelling units is a nuisance and may be the subject of an action brought by “any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance” and “upon judgment, the nuisance may be enjoined or abated, and damages may be recovered.”

A nuisance under Utah law includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit and the smoke drifts in more than once in each of two or more consecutive seven-day periods, and is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

The Utah Condominium Ownership Act states that restrictions in governing documents “regarding the use of the units may include other prohibitions on, or allowance of, smoking tobacco products.”

The Utah Community Association Act, which applies to non-condo HOAs, states that a rule of an association may prohibit an activity within a dwelling if there are attached dwellings, and the activity creates the potential for smoke to enter another lot owner’s dwelling, the common areas, or limited common areas.

Utah law is at the forefront of the national trend to protect the right of every individual to live in their own homes without being subjected to dangerous and toxic chemicals contained in second hand smoke. Contact us to take advantage of these laws and help your association adopt a policy regarding smoking.


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