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 when 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 if 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.