By Curtis G. Kimble.
We frequently hear about and see associations acting on myths that seem to persist despite being clearly incorrect. Here are some of those myths and misunderstandings and the truth behind them:
1. An association can deny a request of a members to view the records of the association.
False. An association member is generally entitled to view and inspect the records of the association upon making a proper request (with limited exceptions, such as for confidential or privileged records). An association must either maintain its records in written form or in another form capable of conversion into written form within a reasonable time. Every association should have a records retention policy to ensure the association keeps records for the proper period of time, to provide for the proper disposal of records, and to assist in making and complying with records requests.
2. An association can require pre-approval for, or prohibit, small satellite dishes installed on owners’ porches, balconies and patios.
False, except an owner (or installer) cannot drill through an exterior wall to install the dish.
The FCC has adopted a rule applicable to “Over-the-Air-Reception Devices” (“OTARD”). OTARD prohibits HOA restrictions that impair the installation, maintenance or use of small satellite dishes in areas that are within the exclusive use or control of the dish user (such as limited common area).
The rule prohibits restrictions as to such areas that: (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.
The rule does not apply to common areas (such as the roofs and exterior walls of a condominium building). It only applies to areas within the exclusive use or control of the dish user. So, an association can certainly restrict or prohibit satellite dishes from being installed on common area roofs and walls. Additionally, the association can regulate dishes on limited common area to some degree.
Contact us for assistance adopting a satellite dish and antenna installation policy if you don’t already have one in place.
3. A director must abstain from voting on matters that the director has a conflict of interest in.
False. As long as the underlying transaction being voted on is fair to the association, a director can have a conflict and still vote. (Utah Code Sec. 16-6a-825). However, it is highly discouraged that the director vote for several reasons, not the least of which is the difficulty in establishing that a transaction is fair and defining exactly what fair is. If the conflicted director simply abstains from voting after fully disclosing to the board the material facts as to the conflicting interest transaction, then most conflict of interest problems will be cured.
4. The association president has authority to make decisions and take actions on behalf of the association.
False, except to the extent the president is authorized by the board or by the bylaws to make decisions and take actions. All powers of an association must be exercised by or under the authority of the the board and the business and affairs of the association must be managed under the direction of the board. (Utah Code Sec. 16-6a-801). The president has no independent authority to exercise the powers of the association or manage the business and affairs of the association.
The bylaws may authorize a person to exercise some or all of the powers that would otherwise be exercised by the board. (Utah Code Sec. 16-6a-801). And, the board can delegate certain authority of the board to a person (including the president). (Utah Code Sec. 16-6a-819). But, otherwise, the president and any other officer have no more authority than any member of the association. It’s very important a board clearly authorize a president to perform the actions and make the decisions they expect him or her to carry out. This authorization should be in a board resolution or reflected in the minutes of a board meeting.
5. A board can adopt a rule about any issue they deem necessary.
False. The board must have authority to restrict or regulate the specific subject of the rule. This authority usually comes from the law or from the CC&Rs. A general provision in the CC&Rs granting the right to adopt rules does not give a board the unfettered authority to restrict rights of individual owners, especially as to units or lots. On the other hand, a board will usually have authority to adopt reasonable rules to govern use of the common property, to govern the use of individually owned property to protect the common property, and to protect the members’ use and enjoyment of their own property and the common property from interference caused by use of other individually owned lots or units.
An association should have a qualified attorney review a proposed rule before it is adopted, and have the attorney review existing rules periodically to ensure the rules are authorized under the governing documents and the law and that they don’t open the association to discrimination claims or present other problems.
6. The law regarding rental restrictions in the Condo Act applies to all condo projects, or the law regarding rental restrictions in the Community Association Act applies to all community associations.
False. Those laws don’t apply to the vast majority of associations out there. Each of those laws only apply to associations where the original declaration is recorded after May 12, 2009. So, if the community is older than 2009 (if the original CC&Rs were recorded before May 12, 2009), the rental restriction requirements in those two statutes do not apply to that association.
UPDATE 2015: The two referenced laws (Utah Code 57-8-10.1 for condos, and 57-8a-209 for non-condos) apply to all HOAs who, on or after May 12, 2015, (1) adopt a rental restriction or prohibition, or (2) amend an existing rental restriction or prohibition.
7. The Utah reserve analysis law requires an association to have reserves.
False. There is no state or federal law requiring a Utah homeowners association to have a reserve fund. In fact, the law specifically requires an association to provide an opportunity for homeowners to vote on whether to fund a reserve fund. Of course, many lenders, as well as FHA, require reserves.