Yes, ballots are records. They are not the official record of the results of a vote, however, and the law does not require that they be kept for any period of time. On the other hand, an association is required to keep minutes, which are a record of the actions the members take with a meeting, and a record of the actions the members take without a meeting. Such minutes or record of the action without a meeting should contain (1) a teller’s report or tally of the votes or consents received for the proposed action, signed by the secretary or... Read more...

After a vote to amend the CC&Rs, how long must an HOA keep and make available those ballots? Read more...

Yes, either statement in the bylaws or a resolution would suffice because the time and date of the meeting is "fixed" in accordance with a process in a resolution or the bylaws, pursuant to subsection (1) of the statute above. Although, just to be clear as to when the time and date of the meeting will be set, I would add something like "and stated in a notice of the meeting delivered to all members in accordance with the bylaws and the law." So, something like, "The Association shall hold an annual meeting of the Members at a date, time, and... Read more...

Does “stated in” mean any statement? If so would a statement like The Association shall hold an annual meeting of the Members at a date, time, and place determined by the Board. be acceptable. The Board shall choose the date, time, and place of the annual meeting” meet this requirement? Read more...

What actions can members take if the 3 board members are aligned refuse to an affirmative vote against one of their board buds? Read more...

The Nonprofit Act requires an association to provide to each member entitled to vote, notice of a meeting of members in a fair and reasonable manner, considering all the circumstances. The law provides certain safe harbor provisions, which means if a notice complies with those safe harbor provisions, the notice is automatically deemed fair and reasonable. But, different notice may also be fair and reasonable when all the circumstances are considered. (Section 16-6a-704(2)). The provision you quoted is one of those safe harbor provisions. So,... Read more...

OK, RE: your answer 3 above, from 16-6a-704, (3) Notice is fair and reasonable if: …………………….. (b) “the notice of an annual or regular meeting includes a description of any matter or matters that: (i) must be approved by the members; or (ii) for which the members' approval is sought” 1. It sounds like nothing can be brought up for a vote at a meeting, unless it was announced in the meeting notice, correct? 2. Therefore, the HOA cannot, on the spur of the moment, call for a vote (in this example, to amend the CC&RS), if no mention of that was... Read more...

1. If the association is incorporated as a Utah nonprofit corporation (as almost all are) then, no, the association cannot completely define what (a) and (b) are. The association must follow any requirements of the law in that regard. 2. So, as to #2, yes, the HOA must follow the Nonprofit Act. In lieu of a meeting, the association must use either a written ballot process or a petition/written consent process, as set forth in the Nonprofit Act. Or a combination of a written ballot and a meeting may be used, or just a meeting. 3. Yes.... Read more...

If the CC&Rs simply say the Declaration (CC&Rs) may be amended by an instrument signed by not less than 2/3 of the lot owners, but do NOT say a) what that instrument looks like, or b) the procedure to be used to obtain it… 1. Can the HOA simply define what (a) and (b) are? 2. Or must the HOA follow the Non-profit Act (using either mail in ballots or petition)? 3. Or can amending be accomplished by a simple vote at the annual meeting, where general purpose proxies are counted for those absent? Read more...

Generally, no. A sale of a unit is between the buyer and seller of the unit and disclosure obligations primarily rest on the seller. In fact, to the extent an HOA does get involved and notifies potential buyers of issues, the HOA will want to be extra careful that the HOA is very accurate in any information it provides so that it doesn't risk improperly interfering with the sale of the unit, which could expose the HOA to liability if the owner is unable to sell the unit for as much as the owner could have sold it if the HOA had not... Read more...

Does the HOA have an obligation to notify buyers of a unit of problems in the unit or problems in other units which affect the unit being sold? Read more...

No, Utah state law doesn't contain a maximum or minimum limit on the number of occupants in a condominium unit. Read more...

Is there anywhere else a maximum or minimum limit on size? Read more...

1. Yes, common areas may include area that is not identified as common area on the plat. Typically, yes, the plat identifies the common property that the HOA owns (but not always). The plat should always be read together with the declaration (CC&Rs). 2. Typically, yes, "property" would mean the land and its improvements. 3. Not necessarily. When "common area" is used in the Community Association Act, it is defined to mean property that the association owns, maintains, repairs or administers. So that definition generally applies when reading... Read more...

Are the following statements correct? 1. Common areas may include area that is not identified as common area on the plat. The plat identifies the common property that the HOA owns. 2. Property is the land its improvements 3. Property that the HOA maintains, repairs, or administers is also common area. 4. Painting is a type of maintenance. 5. Repairing is also a type of maintenance but is explicitly stated for clarity. 6. Replacement is a type of repair (for example when the cost of repairing is more expensive than replacement.) 7.... Read more...

A voting right is a right to vote, specifically the right of a member to vote on association matters, including electing and recalling board members and other matters that are designated by law or the governing documents to be subject to an association vote. A voting right does not include procedural issues - that is, issues that specify how a vote is exercised. The use of a proxy is procedural and not a voting right. Read more...

(1)(b)(ii) says it doesn't apply to an amendment affecting only a lot owner's voting rights, but it seems like "voting rights" might be really broad. What exactly are a lot owner’s “voting rights”? Is the use of a proxy a "voting right"? Read more...

I must preface my comments with the caution that this particular topic (selective enforcement and similar issues) is very fact dependent. That means what's right in one situation may be wrong in another and vice versa. So, I advise against trying to apply general information and advice to a specific situation without the aid of a qualified attorney. 1. As a general matter, yes, unless the association has taken actions that would prevent it from doing so, such as if the HOA had sent a letter to the owner indicating that it would refrain from... Read more...

A hypothetical case where an HOA has the typical rental restriction where a new owner must occupy his lot for 12 months before renting. An investor has bought, never occupied his lot, yet has rented (let's say for a few years), and the HOA has failed to enforce the rental restriction with the daily fine or other measures. 1. CAN the HOA begin enforcing now with that owner, after years of non-enforcement? 2. MUST the HOA begin enforcing now with that owner, even after years of non-enforcement? 3. If the HOA does not begin enforcing with that... Read more...

Actions for enforcement of the rules and design criteria of the association Read more...

Can the residents disapprove how the board is enforcing something? Read more...

That is how I read the statute, yes. Although it’s possible for an HOA to remedy such a noncompliance of the notice requirement by holding the same meeting again and this time with prior notice to the requesting homeowner, that scenario is not the one necessarily contemplated by the statute, as discussed above. Rather, the HOA must comply going forward and is now on notice of that fact and the owner does not need to renew the initial request or the 90-day notice as a general matter. Read more...

So, any time in the future, after the 90 days, if the HOA again fails to comply as warned, the owner could file the described action in court, right?(No need for renewal, so to speak, of either the initial request, nor the warning?) Read more...

In such a scenario, an association would remedy the noncompliance by providing notice to the owner of each subsequent board meeting after the 90-day notice. As you say, the damage is already done as to a prior meeting. It’s possible a board could remedy it by holding a new meeting and discussing and deciding the same things all over again from the prior meeting. But, the statute specifically says nothing in the statute shall affect the validity or enforceability of an action of a board. So, the statute does not require a board to deem a... Read more...

If an HOA failed to notify an owner of a Board meeting, as he previously requested, and the owner emails the HOA a notice of non-compliance and demand for compliance, what does it mean for the HOA to “remedy the noncompliance during the 90-day period…?” The damage is already done (the owner missed that meeting). Read more...

That will depend partly on whether or not the board knows about the amendments. Although, just because the board doesn't know about a past amendment doesn't necessarily mean they can rely on the excuse that they provided all the documents they knew about in good faith. It's possible that failing to be aware of and possess all of the association's governing documents could be a breach of a board member's fiduciary duties (such as the duty to discharge a board member's duties with the care an ordinarily prudent HOA board member would exercise... Read more...

For purposes of the per day penalty, is it considered a "good faith" error, or non-compliance if, upon request for governing documents, the HOA provides By-laws or CC&Rs that do not include amendments? (Thanks. Last question.) Read more...

The $25/day penalty is imposed only if an HOA fails to fulfill an owner's records request for the declaration, bylaws, most recent approved minutes, or most recent budget and financial statement. If an owner properly requested that other HOA records (such as required by the Nonprofit Act) be delivered to the owner by email, and the HOA failed to provide them as required by the law, the owner could deliver the 10 day notice explaining the HOA's failure to comply with 57-8a-227(3)(b)(iii)(D) and the owner's request that the association email... Read more...

Just to clarify: In addition, do your answers also apply to records the Nonprofit Act requires an HOA to keep, and an owner's email request that they be emailed to the owner? Thanks. Read more...

To your first question, no, there is no maximum to the $25/day penalty imposed in Subsection (5) for failure of an HOA to provide on its website or at its registered office the declaration, bylaws, most recent approved minutes, and most recent budget and financial statement. As you state, the law does not specifically require the owner that made the request to follow up or do anything further other than what is specifically required in the statute. However, if the owner waits a long time for no apparent reason and without taking any other... Read more...

The law does not state any obligation for the one making the request to follow up in a certain number of days, with his 10 day notice of court action. So, is there no maximum to that $25/day penalty? (For example, a year after the request, can the owner give the HOA the 10 day notice that he plans to file in court, demanding the requested record, and the penalty of $25/day x 365 days?) If the HOA fulfills the records request, but does it late, without paying the $25/day, is the request still “unfulfilled,” and can the one making the request... Read more...

Yes. In this case, the proposed action is adopting new CC&Rs and bylaws (where various provisions are amended and various provisions may stay the same). As long as the new documents are presented to the owners so the owners can see and read what the new provisions say, then the requirement to "provide an opportunity to vote for or against each proposed action" is satisfied. Read more...

Suppose an HOA Board of Trustees appoints a committee to "review and update" its CC&Rs and Bylaws. The committee, and ultimately the BOT, decide to completely rewrite them both, while making many changes to percentage requirements and the special assessment processes. The BOT then puts the whole package to a vote, without a meeting, and seeks a yes or no vote on the entire package. Does this satisfy 16-6a-709, (2), (b) "provide an opportunity to vote for or against each proposed action"? Read more...

An HOA must use the same decision-making process required by the law in evaluating a request, whether the request is for one assistance animal or for more than one (for example, a person has a disability-related need for two animals, or two people living together each have a disability-related need for a separate assistance animal). In short, no, an HOA can't place a blanket limitation on the number of assistance animals an owner may have, and an HOA may not deny a request based solely on the number of animals in the request. An HOA may only... Read more...

Can an HOA limit the number of Assistance Animals an owner may have? Can an HOA limit the number of Service Animals an owner may have? Read more...

The term "capital improvements," or rather the ambiguity of the term "capital improvements," is the bane of many HOAs. If there was ever a word that had no "normal, commonly understood definition," it would be "capital improvements." Rather, the term has been defined in technical, specialized ways that apply in certain contexts such as an IRS and tax context for purposes of determining how certain costs are treated for tax purposes, or in the context of of a contemplated sale or appraisal of a home in a divorce (such as in the Bettinger case... Read more...

The By-Laws provide: "the words used in... (the By-Laws) shall be given their normal, commonly understood definitions...". Utah Ct. App. 1990: "Capital improvements are 'betterments of a long lasting nature which add to the capital value of the property."" The HOA Board drafted a "rule" in 2016 that states: (a) capital improvement is the addition of something new which was not previously part of the development's original construction." My question is can the Board amend the By-Laws with a rule, when By-Laws provide that only the Member... Read more...