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).


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